The immigration bill has quite a lot to do with article 8 (right to respect for private and family life and one’s home and correspondence) of the European Convention on Human Rights. It is intended that the bill will speedily make its way through Parliament and become the Immigration Act 2014. Overall, the bill adds new provisions to existing primary legislation. As is well known, the scheme of the bill is such that it impacts upon removals, appeals, access to services and marriage and civil partnerships. That, of course, is a whole lot of article 8 to think about.
Although every part of the proposed legislation is important, if one were to choose a single clause in the bill and dwell on it, this might well be:
14. Article 8 of the ECHR: public interest considerations
(*see section 19 of the Immigration Act 2014; and Statement of Changes in Immigration Rules HC 532; and Immigration directorate instructions Chapter 13: criminality guidance in Article 8 ECHR cases)
Immigration Minister Mark Harper has prefaced the provision by accusing the courts of being “overgenerous” in article 8 cases. For him, Parliament and the public are “fed up” of criminals winning cases. Immigration lawyers and criminals are the winners and Harper has said that the bill aims to make it clear to the courts what Parliament’s view on the public interest really is. In the future, while assessing whether a decision is unlawful because it breaches article 8, courts and tribunals must remain attuned to what the public interest requires.
Below, this post investigates the thrust of clause 14 and then narrates some of the case law the Home Office is using to support it.
The effect of clause 14 is to insert Part 5A – Article 8 of the ECHR: public interest considerations – into the Nationality, Immigration and Asylum Act 2002. Part 5A is made up new sections 117A (Application of Part 5A), 117B (Article 8: public interest considerations applicable in all cases), 117C (Article 8: additional considerations in cases involving foreign criminals) and 117D (Interpretation of Part 5A).
Part 5A applies to judicial proceedings which require determination in respect of whether a decision under the Immigration Acts breaches article 8 and would thus be unlawful under section 6 (Acts of public authorities) of the Human Rights Act 1998. In considering the public interest question, the court or tribunal seised of proceedings must give particular regard to the considerations set out in the subsequent provisions. “The public interest question” means the question of whether an interference with a person’s right to respect for private and family life is justified under article 8(2).
By new section 117B, maintaining effective immigration controls is in the public interest. Moreover, the UK’s economic interests dictate that people entering or remaining in the UK possess English speaking skills because this is easier on taxpayers and promotes integration; the financial standing of immigration subjects points to similar conclusions. By the same token, i.e. public interest considerations applicable in all cases, little weight should be given to private life or a relationship with a British citizen or a settled person (a “qualifying partner”) which is formed when a person’s immigration status is unlawful or precarious. Where a person is not liable to deportation, the public interest does not require the person’s removal where he or she has a genuine and subsisting parental relationship with a qualifying child and it would be unreasonable to expect the child to leave the UK.
Under new section 117C, deporting foreign criminals is in the public interest. Therefore, on an ascending scale, the more serious the offence the greater the public interest in deportation. But attempts have been made to recognise both the private and family life limbs of article 8.
In cases involving foreign criminals who have not been sentenced to 4 years’ imprisonment the public interest is in deportation unless:
- Exception 1 applies and they (i) have resided lawfully in the UK for most of their lives (ii) are culturally and socially integrated into the UK and (iii) there would be very significant obstacles to their integration into the country to which deportation is proposed. (New section 117C, subsection (4).)
- Exception 2 applies and (i) they have a genuine and subsisting relationship with a qualifying partner or (ii) they have a genuine and subsisting parental relationship with a qualifying child and (iii) the effect of the deportation on the partner or child would be unduly harsh. (New section 117C, subsection (5).) Qualifying child means a person who is under the age of 18 and who is a British citizen or has lived in the UK for a continuous period of seven years or more.
Where the criminals concerned have received a sentence of at least 4 years’ imprisonment, the public interest is such that deportation is required unless very compelling circumstances – over and above those described in Exceptions 1 and 2 – exist. The above provisions are engaged where judicial consideration is given to a decision to deport a foreign criminal (but only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted).
Foreign criminals are people who (i) are not British citizens (ii) have been convicted in the UK of an offence (iii) have been sentenced to a year’s imprisonment (iv) have been convicted of an offence that has caused serious harm or (v) are persistent offenders. Certain aspects of the periods of imprisonment concerned are notable. For example, unless re-ordered by a court, suspended sentences are excluded as are consecutive sentences aggregated together. However, periods of detention in hospitals or young offenders’ institutions and indeterminate sentences achieving the above thresholds are included. Criminals who assert that they are British must prove their claim.
In addressing the right to a private and family life, the Home Office refers back to the 2012 memo on the new rules and in the memo accompanying the bill the department accepts that like the new rules, the provisions envisioned by the bill are non-exhaustive and are concerned “with the most common situations where article 8 issues arise”.
The Home Office’s point of departure is that the Strasbourg Court recognises that in balancing the competing interests of the individual against those of the larger community, states enjoy a margin of appreciation. For example, in Nunez v Norway 55597/09  ECHR 1047 – a case concerning a Dominican national with a dubious immigration record but private/family life in Norway – reciting the earlier authorities, the Strasbourg Court said at para 68 that the boundaries between the state’s positive and negative obligations cannot be precisely defined (but a fair balance must be struck between the competing interests of the individual and of the community as a whole in both contexts) and that the state enjoys a certain margin of appreciation in both contexts.
Similarly, the tone of new sections 117A – D is inspired by the Court of Appeal’s judgment (Laws & Black LJJ, Mann J) in SS (Nigeria) v SSHD  EWCA Civ 550 which is a famous case about a Nigerian street dealer supplying crack. Laws LJ held that SS had “no vestige of a right to be or remain” in the country because in light of his criminality immigration policy favoured deportation. At paras 42, 48 and 54, the court expressed its disappointment at the fact where potential deportees raised claims under article 8 and sought to resist deportation by relying on the interests of a child or children having British citizenship, scant attention had been provided under the UK Borders Act 2007 to the weight to be attached, in virtue of its origin in primary legislation, to the policy of deporting foreign criminals.
Insofar as the English language skills referred to in new section 117B, subsection (2) are concerned, in the context of pre-entry language tests in R (Bibi & Anor) v SSHD  EWCA Civ 322, the Court of Appeal (Maurice Kay & Toulson LJJ, Sir David Keene) explained at para 30 that to achieve well-intentioned social change states enjoyed a margin of appreciation without which “many benign reforms would be stifled in liminie.” This approach accords with Stec & Ors v UK 65731/01  ECHR, GC where at para 58 the Strasbourg Court explained that states’ wide margin of appreciation in economic and social spheres means that national authorities, rather than international judges, are “better placed” to evaluate “the public interest”.
Moreover, in supporting the idea that migrants to the UK should be financially self-sufficient (new section 117B, subsection (3)), the Home Office cites R (MM & Ors) v SSHD  EWHC 1900, at para 110, where Blake J remarked that in light of “public concern about immigration and its effects on British society”, as an elected/accountable politician the home secretary is entitled to revise the maintenance requirements for spouses/partners.
Equally, other authorities aside, for the purposes of new section 117B, subsections (4)–(5), as explained in Nunez at para 70, unless “exceptional circumstances” exist giving little weight to private/family life while a person’s immigration status is precarious can be justified.
In respect of new section 117C, subsections (1)–(2), the Home Office argues that wide ranging authority – SS (Nigeria), Boultif v Switzerland 54273/00  ECHR 497, Üner v The Netherlands 46410/99  ECHR 873, GC – supports the idea that to prevent crime and disorder deporting foreign criminals is a legitimate aim under article 8(2). Not only is society’s revulsion expressed in deportation – N (Kenya)  EWCA Civ 1094 – but in Samaroo & Sezek v SSHD  EWCA Civ 1139, Dyson LJ (as he then was) held that despite their rehabilitation persons convicted of serious drug trafficking offences (Samaroo had 4 kilos of cocaine and Sezek had 34 kilos of heroin) could be deported. In Gurung v SSHD  EWCA Civ 62, where the appellant was convicted of manslaughter and violent disorder, the Court of Appeal (Rix & McFarlane LJJ, Sir Stephen Sedley: see here) subscribed to this approach and found that, whatever their prospects of re-offending, deporting foreign criminals was endorsed by Parliament under the UK Borders Act 2007.
The reasons behind the drafting of new section 117C, subsections (3)–(5) are as follows. For foreign criminals sentenced to less than 4 years, in discussing the private and family life exceptions highlighted above, the Home Office’s commentary points out that there is no clear line of authority on the minimum time required to establish a prima facie private life case and that under the Immigration Rules, subject to criminality, the threshold is set at 20 years’ continuous residence. The case law establishes the approach to be adopted in assessing proportionality in removing foreigners but the cases predominantly revolve around family life. Noting that the possibility of relocating outside the UK is important, the Home Office argues that in cases where people know that they have entered into relationships where their status was precarious, Strasbourg applies a criterion of “insuperable obstacles”.
From the official viewpoint, the authorities are clear that rights of residence are not guaranteed and where criminality exists states enjoy a margin of appreciation. The case law is family life centric and the Home Office commentary relies on the well known passage in Rodrigues da Silva and Hoogkamer v Netherlands 50435/99  ECHR 86, para 39 where the existence of insurmountable obstacles to relocating in the country of origin was indentified as a factor to be taken into account in relation to the extent to which family life would be ruptured. The passage also considers other factors such as whether family life was created at a time when it was known that the continuation of such life would be precarious and the court has held that in such circumstances the removal of the non-national family member would only violate article 8 in the most exceptional circumstances. The case law is replete with such references and almost a dozen authorities exist on the point. Similarly, in R (Nagre) v SSHD  EWHC 720 (Admin), para 42, Sales J upheld the validity of this approach by saying that non-standard and particular features of a compelling nature were needed to show that removal would be “unjustifiably harsh”.
In Maslov v Austria 1638/03  ECHR 546 GC, Strasbourg added that it in the case of a settled migrant who had spent his youth and most of his life in the host country very strong reasons were required to justify expulsion. Exception 1 is aimed at catering for the Maslov settled migrant and it accords with the proposition that private life established under a precarious immigration status deserves very little weight and that in the absence of very significant obstacles to relocation the public interest lies in deporting foreign criminals. The present Immigration Rules prescribe a “no ties” test. Yet in Ogundimu (Article 8 – new rules) Nigeria  UKUT 60 (IAC), see here and here, the Upper Tribunal construed the word “tie” to mean something more than an abstract or remote link (something which ties an a person to the country of origin). But, for the Home Office, this “vague” treatment exceeds the expectations of the Strasbourg jurisprudence and so Exception 1 uses “more precise language about integration” and requires its future beneficiaries to have spent most of their lives in the UK.
Geared towards family life, Exception 2 reflects the principles embodied in the current Immigration Rules and purports to embrace the decision in ZH (Tanzania) v SSHD  UKSC 4 that children’s best interests are a primary consideration. The words “unduly harsh” are intended to indicate the interpretation of the phrase “insurmountable obstacles” which sets a higher threshold than “reasonableness”.
In JO (Uganda) v SSHD  EWCA Civ 10, at paras 26 – 27 the Court of Appeal (Mummery, Richards & Toulson LJJ) explained that the enquiry about the proportionality of deportation did not have to be limited to a phrase’s semantics – “insurmountable obstacles” or “impossible or exceptional difficulty” – and that “a broader assessment of the difficulties” is apposite because “the actual language used is not critical”. Matters must be examined as a whole and no limiting test is to be imposed. While the reasonableness of expecting family members to join deportees in another country is clearly important, it is not decisive in assessing proportionality because in cases of serious offending deportation is proportionate even where established family ties are severed.
For the Home Office, coupled with the “harsh” consequences mentioned in R (Nagre), the above genre of case law is such that the UK enjoys a margin of appreciation to formulate its own view about where the public interest in deportation lies.
Finally, for foreign criminals sentenced to imprisonment for more that 4 years within the meaning of new section 117C, subsection (6), the presence of “very compelling circumstances” is not arbitrary and is aligned not only with Maslov and Üner but is also generally in equilibrium with other fact specific Strasbourg jurisprudence like Grant v UK 10606/07  ECHR 26, Onur v UK 27319/07  ECHR 289, Balogun v UK 60286/09  ECHR 359 and so forth. The 4-year threshold corresponds with the Parliament’s chosen methods in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 which has amended the Rehabilitation of Offenders Act 1974 to indicate that a 4-year custodial sentence can never be spent. The result is that the judiciary will have to give regard to Parliament’s view of the public interest which specifies that falling within Exception 1 or Exception 2 is insufficient to hinder deportation and only weightier considerations will suffice.
It appears that the government wants to use the above to make the immigration system more article 8 proof. But things said for the sake of political expediency can sometimes be misleading. And since cases turn on their particular facts, the vilified judiciary, which is compelled to strike the right balance, has a hard enough job to do without media misrepresentation.
For example, in 2010, when the present government ascended to power, according to the Guardian (using MoJ figures) there were 850 appeals against deportation of which 233 were successful. Only 149 of these were allowed on human rights grounds and in 108 (or 12%) of them, article 8 saved the day for appellants. However, in whipping up a media circus, several elements in the press chose to depict this incorrectly by claiming that 149 out of 233 (or 64%) appeals were successful on human rights grounds.
Interesting developments in subsequent years can be found in the fact sheet on appeals that accompanies the bill in which Mark Harper explains:
In 2011-2012 of the 409 successful appeals against deportation by foreign criminals, 177 that is around 40% of the successful appeals (10% of all appeals by foreign criminals) were allowed on article 8 grounds.
In light of the impact assessment document about reforming appeal rights under the bill, the home secretary’s figure of 70,000 annual deportation appeals is also wide open to question. For example, pages 5 – 6 of this helpful impact assessment document explain that excluding asylum and family visit cases, in 2012/13 the First-tier Tribunal received 58,830 cases. Of these 30,486 cases concerned managed migration, 26,500 concerned entry clearance and only 1,844 appeals concerned deportation and other cases.
The provisions of the bill and the documents that accompany it do make riveting reading. But it is nevertheless important to note that by subscribing to an annual figure of 70,000 deportation appeals, the question of foreign criminals and human rights has been blown out of proportion by the home secretary.