Author: IAIN HALLIDAY
Migrants who would otherwise have no legal right to remain in the UK can appeal against their removal on the basis of their human rights. Usually they rely on Article 8 of the European Convention on Human Rights, which protects the right to private and family life. Article 8 is an integral part of UK law thanks to the Human Rights Act 1998.
The law on Article 8 in immigration cases is not easy going. In a recent case update written for this blog my colleague, Darren Stevenson, observed that
the law is unnecessarily tortuous as regards the proper assessment of family life rights under Article 8… [and] this complexity detracts from the tribunal’s primary function, which is to resolve matters of fact.
Part of the reason for this complexity is Part 5A of the Nationality, Immigration and Asylum Act 2002, inserted by the Immigration Act 2014. As part of the government’s attempt to restrict the scope of the right to private and family life contained in Article 8, it sought to dictate to courts and tribunals how they should treat certain behaviour such as living in the UK unlawfully, claiming public funds, or being unable to speak English.
Legislation giving immigration judges instructions on deciding human rights appeals
During passage of the Immigration Bill 2014, the Joint Committee on Human Rights indicated that it was “uneasy” about the provisions and the “significant legislative trespass into the judicial function” they represented.
Why the concern? The provisions, at first blush, appeared to offend the constitutional principle of the separation of powers: the idea that the legislature that makes the law (Parliament), the executive responsible for formulating public policy to implement those laws (the government), and the judiciary responsible for applying and interpreting the laws (the courts) should all remain separate and that none of these three branches of the state should exercise the power of the other.
It is not acceptable in a constitutional democracy for state officials, who are required to govern subject to the law, to also be responsible for making, interpreting, and enforcing that law. If Parliament were to dictate to the courts how to resolve factual disputes between a private individual and the government this would clearly be contrary to the separation of powers. (For more information on this principle, see this House of Commons Research Paper).
To avoid any constitutional impropriety, whoever drafted the Immigration Act chose his/her words carefully. Human rights appeals involve a balancing exercise: on one side of the scales is the migrant’s private and family life; on the other side of the scales is the public interest in maintaining effective immigration control. Part 5A provides that, when carrying out this balancing exercise, courts and tribunals “must (in particular) have regard” to the considerations outlined in that part. The considerations are not exhaustive nor are they necessarily decisive. Thus legislative diktat was avoided. However it gives judges a significant steer by outlining how Parliament expects the judicial balancing exercise to be carried out in the majority of cases.
This, as noted by the House of Lords Constitution Committee at the time, is a “constitutional innovation”. It has resulted in the “tortuous complexity” alluded to earlier. The Supreme Court recently lamentedthat:
It is profoundly unsatisfactory that a set of provisions which was intended to provide clear guidelines to limit the scope for judicial evaluation should have led to such disagreement among some of the most experienced Upper Tribunal and Court of Appeal judges.
Instead of carrying out their primary fact finding function, immigration judges have been forced to pepper their judgements with copious paragraphs of legalese in order to demonstrate engagement with the statutory considerations, often resorting to semantic gymnastics in order to reconcile those considerations with the overriding requirement to decide cases in accordance with Article 8 and the Human Rights Act.
Yet, it is what we are stuck with. So what are the considerations judges must have regard to and what have the courts said about them?
The mandatory public interest considerations
Ability to speak English
117B(2) – It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English
- are less of a burden on taxpayers, and
- are better able to integrate into society
If you cannot speak English, the public interest in removing you is strengthened. However the converse is not true. If you can speak English, this is a neutral factor:
The subsections do not say that it is in the public interest that those who are able to speak English and are financially independent should remain in the UK. They say only that it is in the public interest that those who seek to remain in the UK should speak English and be financially independent; and the effect of the subsections is that, if claimants under article 8 do not speak English and/or are not financially independent, there is, for the two reasons given in almost identical terms in the subsections, a public interest which may help to justify the interference with their right to respect for their private or family life in the UK. In seeking to portray the strength of their private or family life by reference to all their circumstances, claimants may wish to highlight their ability to speak English and/or their financial independence; but the legitimate deployment of such factors in that context is to be contrasted with the erroneous further submission that the subsections propel a conclusion that, where those factors exist, there is a public interest in favour of the claims. (Rhuppiah v Secretary of State for the Home Department  UKSC 58)
According to the Upper Tribunal in AM (S.117B)  UKUT 260 (IAC), only compliance with the language requirements of the Immigration Rules (i.e. passing a formal test at the appropriate level or having a degree taught in English) counts as “being able to speak English” for the purposes of this section. But this suggestion has not been repeated or adopted by the higher courts.
117B(3) – It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons
- are not a burden on taxpayers, and
- are better able to integrate into society.
It was initially unclear what was meant by “financially independent”. The Court of Appeal suggested in the Rhuppiah case that this meant financially independent of anyone, including family members. However the Supreme Court has now clarified that this means financially independent of the state, i.e. the person is not in receipt of public funds.
As with an ability to speak English, financial independence is a neutral factor. It does not count positively in someone’s favour — whereas lack of financial independence is a factor in favour of removal.