Judges Told How to Assess Private and Family Life – Article 8, ECHR
Here is another article in connection of our series of articles on the 2014 Act, Part two will follow shortly and will concentrate on Section 117C: additional considerations in cases involving foreign criminals – deportation
In July 2012 the government started a process of fundamental change to the way in which it would consider applications made by family members to remain in the UK by introducing Appendix FM into the Immigration Rules. Appendix FM is an extensive and confusing (even for experienced immigration lawyers!) set of rules to be followed by people wanting to rely on their family relationships to remain in the UK. Wherever family relationships are the basis of an application to remain in the UK, as well as the UK’s own rules, the Home Office must also consider Article 8 of the European Convention of Human Rights (ECHR) which states that
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
- There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others
Appendix FM represents the first step in the government’s plans to prescribe which relationships should outweigh the stated public interestin maintaining national security, public safety or immigration control for the purposes of Article 8 ECHR. This means that unless an applicant can satisfy the requirements of Appendix FM, he is not considered to have a sufficiently strong relationship to outweigh the public interest in removing him from the UK. The far-reaching changes have had a massive effect on the way in which human rights applications must be presented to the Home Office. Needless to say the way in which the Home Office view a person’s rights based on their private and family life is substantially different from an applicant’s and so many applications continue to be refused.
The saving grace for many applicants has been that even where the application is unsuccessful under the Immigration Rules introduced by the Home Office, arguments can still be presented directly under Article 8 ECHR to an Immigration Judge during an appeal. Current case law states you can also raise Human Rights grounds in EEA appeals but some Judges are resistant to this and there may be a Upper Tribunal ruling on this soon requiring an Appellant to raise a Human Rights argument in a separate application. However, Article 8 ECHR considerations have now also been targeted by the government. Recognising that Immigration Judges may not necessarily view ‘private and family life’ in the way the Home Office want them to, the government has now introduced a way of controlling more tightly how Judges will consider Article 8 ECHR.
Section 19 of the Immigration Act 2014 (IA 2014) introduces a new Part 5A into the Nationality Immigration and Asylum Act 2002 (NIAA 2002), consisting of four new sections (117A-117D) which direct Judges on what is in the public interest when they consider the Article 8 ECHR aspects of appeals before them. The new Part 5A came into force on 28 July 2014 and was intended to have immediate effect on all appeals containing any arguments under Article 8 ECHR. This means that every appeal heard on or after 28 July 2014 regardless of whether the refusal decision was made before 28 July 2014 is to be considered in accordance with the new Part 5A. As the directions are contained in an Act of Parliament, they are mandatory and so must be considered by Judges. Any failure to consider the new sections may mean that the judgement made is unsafe and can be appealed against.
The two substantive new sections are 117B and 117C. Section 117A simply confirms that in considering the public interest question in Article 8 ECHR Judges must have regard to the factors mentioned in sections 117B in all cases and the additional considerations in 117C in cases related to deportation of foreign criminals. Section 117D gives definitions of some of the terms used in the other sections.
Section 117B Article 8: Public interest considerations applicable in all Immigration cases.
Essentially, the public interest, and in particular the economic well-being of the country, favours English speaking and financially independent applicants as they are said to be less of a burden on the tax-payer and are better able to integrate into society (ss117B (2) and (3)). The government also wants Judges to give little weight to relationships and private life established whilst an applicant is in the UK unlawfully or whilst his/her immigration status is precarious (ss117B (4) and (5)). Precarious could mean even where an Applicant was here on temporary legal basis – eg student/Tier 2 etc. Finally in this section it is confirmed that where the case does not involve deportation proceedings, there is no public interest in removing someone who has a genuine and subsisting parental relationship with a British child or a child who has lived in the UK for a continuous period of seven years or more (a ‘qualifying child’) and it would not be reasonable to expect the child to leave the UK (s117B (6)).
It is clear from the above that the mandatory considerations are a bit of a mixed bag and are by no means all weighted against applicants. There are some considerations which cannot be improved upon by applicants such as when a relationship was begun, having a precarious immigration status or how old their child is, as these factors are often historical and cannot be controlled. However, the other considerations may be seen to present applicants with opportunities to improve their position before an Immigration Judge; for example, learning to speak/read/write English, becoming financially independent (if legally possible), evidencing a genuine and subsisting relationship with a qualifying child and explaining why it is not reasonable to expect that child to move abroad.
In a way therefore, an unintended consequence of these changes may be that the government has made it easier to succeed under Article 8 ECHR before an Immigration Judge by telling applicants what they need to prove to succeed. Even where the criteria cannot be met absolutely
a relationship that began when here unlawfully, the section does not say no weight should be given to such a relationship, only that little weight should be given; in such circumstances, an applicant may accept there is nothing to be done about when his relationship began but he can improve his position by showing he is not a burden on the tax-payer and has integrated into society because he is able to speak English and is financially independent.
The same may be said about a person with a child who has been here only five years and so is not a ‘qualifying child’ so as to completely negate the public interest in removing him; such a person may still persuade a Judge that taking into account all other factors which are in his favour, there is little public interest in removing him. It is also worth remembering that that the Judge must always consider what is in the best interests of any children affected by the proceedings and this duty is not affected by the new provisions.
Finally, it should be noted that s117B (6) should override all the other sections even if they go against an applicant, if all the criteria are fulfilled to the satisfaction of the Immigration Judge as this would mean that there is no public interest at all in removing a person irrespective of when the relationship was begun or whether the person can speak English or not.