Article 8 and a half – wider than thought, but will it work?

The Home Office has released its Statement of Intent on Family Migration, which, amongst other things, makes the position a little clearer on its plans for Article 8 of the European Convention on Human Rights, as discussed in my earlier post (thank you to Obiter J for linking to the document in his post).

In short, the changes are much wider than initially thought. The plan is not to simply ask Parliament to approve a declaration of intent on Article 8 as some suspected, but rather to ask Parliament to approve amended Immigration Rules which will set out an extensive, codified definition of the Article 8 balancing factors, in order to:

unify consideration under the rules and Article 8, by defining the basis on which a person can enter or remain in the UK on the basis of their family or private life.

The plans, which are set out from paragraph 27 of the report, are therefore more significant than I and others had been speculating, in that they will apply not just to the deportation of foreign criminals as was the focus of the press coverage and Home Secretary Theresa May’s statement to Parliament, but to the whole of immigration law. They also set out the legal reasoning as to why this is expected to bind judges, which appears to originate from an obiter comment in paragraph 17 of the 2007 House of Lords case of Huang.It appears that the intention is to give the courts (and the UKBA) a new starting point for the consideration of Article 8. The aim is to fill an apparent “vacuum” whereby the balancing exercise under Article 8 has been left to the courts:

in providing in section 33 that automatic deportation must not breach a person’s ECHR rights, no indication was given in that Act or in the rules as to how the proportionality balance should then be struck between individual Article 8 rights and the public interest in deportation.

The perceived problem is that  “previous Secretaries of State have asserted that if the Courts think that the rules produce disproportionate results in a particular case, the Courts should themselves decide the proportionate outcome” but apparently

The Courts have accepted this invitation to determine proportionality on a case-by-case basis and do not – indeed cannot – give due weight systematically to the Government’s and Parliament’s view of where the balance should be struck, because they do not know what that view is

And here is the nub:

The new Immigration Rules are intended to fill this public policy vacuum by setting out the Secretary of State’s position on proportionality and to meet the democratic deficit by seeking Parliament’s agreement to her policy.

This is a response, it would seem, to a request from the courts:

This is consistent with some non-binding comments made by the Courts in recent Article 8 case law, and with the House of Lords’ observation in Huang in 2007 that immigration lacks a clear framework representing “the competing interests” of individual rights and the wider public interest in Article 8, because the immigration rules “are not the product of active debate in Parliament”.

The Home Office is clear that “This does not mean that the Secretary of State and Parliament have the only say on what is proportionate. The Courts have a very clear role in determining the proportionality of the requirements in the Immigration Rules”. However

It is for the State to demonstrate that measures that interfere with private and family life are proportionate. But a system of rules setting out what is or is not proportionate, outside of exceptional circumstances, is compatible with individual rights, as has been accepted by the Courts in other spheres, e.g. housing law

It would seem that the appeal to “housing law” is (although it is not directly referenced) is another reference to the 2007 Huang House of Lords case – see para 17, which appears to be at the heart of this attempt to codify Article 8:

Counsel for the Secretary of State nevertheless put his case much higher even than that. She relied by analogy on the decision of the House in Kay v Lambeth London Borough Council [2006] UKHL 10, [2006] 2 AC 465, where the House considered the article 8 right to respect for the home. It held that the right of a public authority landlord to enforce a claim for possession under domestic law against an occupier whose right to occupy (if any) had ended and who was entitled to no protection in domestic law would in most cases automatically supply the justification required by article 8(2), and the courts would assume that domestic law struck the proper balance, at any rate unless the contrary were shown. So here, it was said, the appellate immigration authority should assume that the Immigration Rules… The analogy is unpersuasive. Domestic housing policy has been a continuing subject of discussion and debate in Parliament over very many years, with the competing interests of landlords and tenants fully represented, as also the public interest in securing accommodation for the indigent, averting homelessness and making the best use of finite public resources. The outcome, changed from time to time, may truly be said to represent a considered democratic compromise. This cannot be said in the same way of the Immigration Rules and supplementary instructions, which are not the product of active debate in Parliament

It would be interesting to hear from housing lawyers as to how the position has changed since 2007, particular in the light of and the fact that the the Kay v Lambeth case mentioned above was found by the European Court of Human Rights to breach Article 8. Incidentally, this led to a wholesale change in UK courts’ approach to Article 8 in possession cases. Indeed, the Supreme Court made clear in  Pinnock that the balancing exercise would, going forward, be left to the courts.

The position in housing law, and the changes since Pinnock, might even be a useful example for lawyers in future claims to argue against attempts to codify Article 8 in the immigration context.

The document continues from paragraph 42 to explain how the new system will work, with particular reference to the best interests of children, the factors are likely  to lead to discretionary grant of leave, the relevant factors and time thresholds for the private life aspect of Article 8 and criminality. I have set out these paragraphs below.

This is very interesting, and as I said, much wider than thought. The Home Secretary is not just setting out the balancing factors, but also how they are expected to rank in UKBA decisions and the courts. Of course, the courts can strike any or all of the new rules down using powers under section 6 of the Human Rights Act 1998 if it is considered that they are disproportionate and therefore violate Article 8. Those challenges will undoubtedly arise.

Comments are welcome on the likely effect of this serious attempt to change the way the courts and UKBA consider Article 8 in the immigration context. Simply, this potentially a very significant change : will it work?

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Extract – the relevant sections on how the changes will work (original document here)
  1. If an applicant applies under the new Immigration Rules for family members, on the correct form and paying the relevant application fee, and meets all the requirements of the five year family route at every stage – entry (including the rules on switching between migration routes in the UK), further leave to remain and indefinite leave to remain – they will be able to reach settlement in five years.
  2. A person who does not meet the requirements of the rules will no longer be considered for Discretionary Leave outside the Immigration Rules on Article 8 grounds. A grant of Discretionary Leave provides automatic access to public funds, which currently places them in a better position than those who meet the rules. In future, if they do not qualify for leave under the rules, or outside the rules on a genuinely exceptional basis, they will not receive any form of leave and will be expected to leave the UK.
  3. The new Immigration Rules will provide a basis on which a migrant who cannot meet the income threshold and other requirements of the five year family route to settlement can remain in the UK on the basis of their family life where it would breach Article 8 to remove them.
  4. Such a case can apply for leave, on the correct form and paying the relevant application fee, on a 10 year route to settlement. (Where an appeal is, or further submissions are, allowed on Article 8 grounds alone, the applicant will enter the 10 year route on an uncharged basis). Once on the route, all applicants will have to make an application, on the correct form and paying the relevant application fee, at each further leave stage and for indefinite leave to remain. The 10 year route will consist of four periods of 30 months’ leave, plus a fifth application for indefinite leave to remain.
  5. This means that, if they meet the requirements, an applicant on this route will be able to qualify for indefinite leave to remain at the same point as those who can apply on the basis of long residence under the existing 10 year rule for those with continuous leave (paragraph 276B(i)(a) of the Immigration Rules).
  6. To qualify for indefinite leave to remain after 10 years, an applicant must:

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  • Have no unspent convictions; and
  • Demonstrate a knowledge of language and life in the UK by passing the Life in the UK test and by presenting a speaking and listening qualification at intermediate level (Common European Framework of Reference level B1) or above.
  1. If an applicant fails only the knowledge of language and life in the UK requirement at the indefinite leave to remain stage, they will be granted further leave of 30 months to allow them more time to evidence they meet the requirement, at which point they can immediately apply for indefinite leave to remain if they continue to meet the other requirements.
  2. Applicants for settlement will be exempt from the knowledge of language and life in the UK requirement if they are aged 65 or over, or have a physical or mental condition that prevents them from meeting the requirement.

50. An applicant for further leave or indefinite leave to remain on the five year family route who fails the new financial requirement will be granted further leave on the 10 year route if they qualify for it on Article 8 grounds. If they applied within 28 days of the expiry of their extant leave, their time on the five year route will count towards the 10 year route. If an applicant for further leave or indefinite leave to remain on the five year route has overstayed by more than 28 days, they will have broken their continuous leave and their time on that route will not count towards the 10 year route if they qualify for it.

  1. An applicant without extant leave will be able to qualify for the 10 year route if there is a reason, e.g. a child’s best interests, why their removal from the UK would breach Article 8. The period of 28 days from the expiry of extant leave within which an applicant must apply to enter the 5 year family route will not apply to applications to enter the 10 year route.
  2. Once on the 10 year route, an applicant for further leave or indefinite leave to remain who has overstayed by more than 28 days will have broken their continuous leave and will have to start the route again if they continue to qualify.
  3. Migrants on the 10 year route will have permission to work and will not have automatic access to public funds.

BEST INTERESTS OF A CHILD

  1. As well as setting out how the balance should be struck when considering proportionality under Article 8, the new Immigration Rules also reflect the duty on the Secretary of State to ensure that immigration decisions are made having regard to the need to safeguard and promote the welfare of children who are in the UK.11 The assessment of the “best interests of the child” is intrinsic to the proportionality assessment under Article 8, and has therefore also been incorporated into the Immigration Rules.
  2. In assessing the best interests of the child, the question in immigration cases where a child would have to leave the UK as a consequence of the decision to remove their parent, is whether it is reasonable to expect the child to live in another country. The new Immigration Rules set out a clear framework for weighing the best interests of the child against the wider public interest in removal cases. The best interests of the child will normally be met by remaining with their parents and returning with them to the country of

11 Section 55 of the Borders, Citizenship and Immigration Act 2009

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origin, subject to considerations such as long residence in the UK and any exceptional factors.

  1. The Immigration Rules will deal clearly with how to treat a British citizen child or a foreign national child in cases where we would otherwise intend to remove their parent(s) and how countervailing factors should weigh in the decision. There are some circumstances where a child may be allowed to stay on a temporary basis on best interests grounds, e.g. for health or education reasons. The key test for a non-British citizen child remaining on a permanent basis is the length of residence in the UK of the child – which the Immigration Rules will set at at least the last seven years, subject to countervailing factors. The changes are designed to bring consistency and transparency to decision- making.
  2. While the best interests of the child are a primary consideration, under some circumstances criminality will be a countervailing factor which outweighs the child’s best interests: the criminality thresholds set out in the section below on criminality will apply.

PRIVATE LIFE

  1. The Immigration Rules will provide a basis on which a person without family life can remain in the UK through long residence and social integration in the UK, consistent with the approach of Strasbourg and UK case law in this area. Those here lawfully for 10 years will continue to be able to qualify for settlement if they meet the requirements (under paragraph 276B(i)(a) of the Immigration Rules). The current 14 year long residence route to settlement for those in the UK lawfully or unlawfully will be abolished (paragraph 276B(i)(b)).
  2. Under the new rules, at least 20 years’ continuous residence in the UK, lawfully or unlawfully, will generally be required before a person can apply to start a 10 year route to settlement in the UK on the basis of the Article 8 right to respect for private life. Anything less than 20 years’ continuous residence will generally be insufficient to establish private life to the extent that it would be unlawful to remove the person from the UK. The criminality thresholds set out in the section below on criminality will apply.
  3. The Immigration Rules will provide that, for leave to remain on the basis of private life in

the UK, the applicant must:

  • -  have resided continuously in the UK for at least 20 years (discounting any period of imprisonment, in this and other cases); or
  • -  be under the age of 18 years and have resided continuously in the UK for at least seven years; or
  • -  be aged 18 years or above but under 25 years and have spent at least half their life residing continuously in the UK; or
  • -  be aged 18 years or above, have resided continuously in the UK for less than 20 years but have no social, cultural or family ties with their country of origin.

61. An applicant for leave to remain in the UK on the basis of private life must apply on the correct form and pay the relevant application fee. If they qualify, they will enter a 10 year route to settlement, consisting of four periods of 30 months’ leave to remain, plus a fifth application for indefinite leave to remain, if they qualify for it. Once on the route, applicants will have to make an application, on the correct form and paying the relevant application fee, at each further leave stage and for indefinite leave to remain.

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62. To qualify for indefinite leave to remain after 10 years, an applicant must:

  • Have no unspent convictions; and
  • Demonstrate a knowledge of language and life in the UK by passing the Life in the UK test and by presenting a speaking and listening qualification at intermediate level (Common European Framework of Reference level B1) or above.
  1. If an applicant fails only the knowledge of language and life in the UK requirement at the indefinite leave to remain stage, they will be granted further leave of 30 months to allow them more time to evidence they meet the requirement, at which point they can immediately apply for indefinite leave to remain if they continue to meet the other requirements. Applicants for settlement will be exempt from the knowledge of language and life in the UK requirement if they are aged 65 or over, or have a physical or mental condition that prevents them from meeting the requirement.
  2. Once on the 10-year private life route, an applicant for further leave or indefinite leave to remain who has overstayed by more than 28 days will have broken their continuous leave and will have to start the route again if they continue to qualify.

CRIMINALITY

  1. The Immigration Rules will set clear thresholds for the impact of an applicant’s criminality on the scope for them to be granted leave to enter the UK on the basis of their family life or leave to remain in the UK on the basis of their family or private life. The rules will also reflect the fact that family life established when the parties knew one or both of them lacked a valid basis of stay in the UK carries less weight under the case law of the European Court of Human Rights.12
  2. This will provide clarity in practice as to how Article 8 issues should be determined in immigration applications, taking account of the very clear public interest in deporting serious criminals. In the UK Borders Act 2007, Parliament set the threshold for automatic deportation at a single custodial sentence of 12 months or more, introducing a duty on the Secretary of State to deport non-EEA nationals where the conditions are met whilst acknowledging an exemption to that duty if removal would breach ECHR rights. The new Immigration Rules will set out the Government’s practice in respect of that exemption from automatic deportation as it applies to Article 8.
  3. The starting point is that there are some offenders who should almost always be removed because of the seriousness of their crime and the overwhelming public interest in their deportation despite their family or private life in the UK; and some other offenders who should normally be deported, but who may be able to argue in individual cases that their family or private life outweighs the strong public interest in deportation. There are also cases where the level of criminality is below the automatic deportation threshold, but the offending is so harmful or persistent that deportation will normally be proportionate.
  4. Under the new Immigration Rules:

• Only in exceptional circumstances will family life, the best interests of a child (even though always a primary consideration) or private life outweigh criminality and the public interest in seeing the person deported where they have received a custodial sentence of at least four years.

12 Rodrigues da Silva, Hoogkamer v Netherlands (2007) 44 EHRR 729

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• Deportation will normally be proportionate where the foreign national criminal has received a custodial sentence of at least 12 months and less than four years, or has received a custodial sentence of less than 12 months and, in the view of the Secretary of State, their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law. Deportation will not be proportionate if:

  • -  they have a genuine and subsisting relationship with a partner in the UK (who is a British citizen, settled in the UK or in the UK with refugee leave or humanitarian protection), and they have lived here with valid leave continuously for at least the last 15 years (excluding any period of imprisonment) and there are insurmountable obstacles to family life with that partner continuing overseas; or
  • -  they have a genuine and subsisting parental relationship with a British citizen child or a child who has lived in the UK for at least the last seven years, and it would be not be reasonable to expect the child to leave the UK with the foreign national criminal and there is no other family member who is able to care for the child in the UK; or
  • -  they have been continuously resident in the UK for at least the last 20 years (excluding any period of imprisonment) and they have no social, cultural or family ties with their country of origin, or they are aged under 25 years and have spent at least half of their life residing continuously in the UK (excluding any period of imprisonment) and they have no social, cultural or family ties with their country of origin.

69. The Government believes that a custodial sentence of four years or more represents such a serious level of offending that it will almost always be proportionate to outweigh any family issues, even taking into account that the best interests of a child are a primary consideration. This also accords with the rehabilitation periods in the Rehabilitation of Offenders Act 1974, as amended by the Legal Aid, Sentencing and Punishment of Offenders Act 2012. When this is implemented, a four year custodial sentence will be the point at which an offence can never be spent.

3 thoughts on “Article 8 and a half – wider than thought, but will it work?

  1. I suspect that the recent statement in relation to spousal entry to the UK with a extended probation period and a high income is simply to deter UK citizens from marrying outside the EU countries in light of the forced marriage issue. This particular policy is simply unsustainable and will fall foul of the ECHR Articles for the following reasons.

    A person has a right to family life that means a choice of a partner who ever or where ever that happens to be. There is no rule that says that marriages fair better if it happens in the EU or indeed that there are no forced marriages within the EU. Second, introducing a arbitrary high income without any justification economic or regional differential is simply asking for trouble. Moreover, high income can be seen as a clear barrier and the possibility of raising a discrimination challenge be it direct or indirect where it is well know that women and ethnic minorities fair less well in the employment market.

    It can also be pointed out that the UK in introducing such laws may mean UK citizens finding alternative solutions namely, take advantage of lax immigration rules in other EU states, are the UK government going to ask other states to follow suit? Then there is the argument as to why so many UK citizens choose to marry outside the EU? Moreover, a state that promotes family values and an aspiration to be a patriarchal society can not these measures be seen as anathema? .

  2. they are amending the family route for British people if they will marry with non EU. whats about EU people those who are in UK if they will marry with non EU.
    Is this discrimination of lower income British or they are giving permission to rich people what they want they can do.

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