Minimum income rules for immigrants do not breach human rights – Appeal Court

money_1945490cMM(Lebanon) and Others, R (on the application of ) v Secretary of State for the Home Department & Anor [2014] EWCA Civ 985 (11 July 2014) – read judgment

Neil Sheldon of 1 Crown Office Row acted for the appellant Secretary of State in this case. He has not had anything to do with the writing of this post.

Provisions in the Immigration Rules which impose income requirements on individuals living in the United Kingdom, who wish to bring their non-European Economic Area citizen spouses to live with them, are not a disproportionate interference with their right to family life under Article 8 of the European Convention on Human Rights. The Court of Appeal has also underlined the important (but often misunderstood) point that there is no legal requirement that the Immigration Rules should provide that the best interests of the child should be determinative. Section 55 of the Borders, Citizenship and Immigration Act 2009 is not a “trump card” to be played whenever the interests of a child arise.  Continue reading

Deportation of foreign criminals: the new immigration rules are a “complete code”

ukborderMF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192 – read judgment

In what circumstances can a foreign criminal resist deportation on the basis of his right to family life under Article 8 of the Convention? Until 2012 this question was governed entirely by judge-made case law. Then rules 398, 399 and 399A  were introduced into the Immigration Rules HC 395.  I have posted previously on the interpretation of these rules here and here.

The rules introduced for the first time a set of criteria by reference to which the impact of Article 8 in criminal deportation cases was to be assessed. The intention of the legislature in introducing these rules was to state how the balance should be struck between the public interest and  the individual right to family life:

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Another critique of the new Immigration Rules’ codification of Article 8

aeroplane in sunsetIzuazu (Article 8 – new rules) Nigeria [2013] UKUT 45 (IAC) – read judgment

The Upper Tribunal has concluded that new Immigration Rules do not adequately reflect the Secretary of State’s obligations under Article 8 of the ECHR.

This is the second determination of the “fit” between the immigration rules, introduced last year, and the UK’s obligations under Article 8 of the Convention. I covered the Upper Tribunal’s assessment of the rules in MF (Article 8–new rules) Nigeria [2012] UKUT 00393 (IAC) in a previous post and it will be remembered that the Tribunal held there that the new rules fall short of all Article 8 requirements.

Background

The claimant was a Nigerian national who had raised a claim to private and family life under Article 8 of the European Convention on Human Rights as part of a claim for asylum. She had travelled to the UK previously, with periods of overstaying and having obtained employment by using false identity papers. Whist in the UK she met her husband, a dual British/Nigerian citizen and argued that her removal would interfere with her right to family life under Article 8. Continue reading

Upper Tribunal confirms the legitimacy of the new immigration rules – but questions their completeness

MF (Article 8 – new rules) Nigeria [2012] UKUT 00393(IAC) – read judgment

This tribunal decision is the first to tackle the so-called “codification” of Article 8 considerations in immigration law (see  Adam’s post  on the Home Office’s proposals earlier this year).

Before the new immigration rules were introduced in July,  cases involving Article 8 ECHR ordinarily required a two-stage assessment: (1) first to assess whether the decision appealed against was in accordance with the immigration rules; (2) second to assess whether the decision was contrary to the appellant’s Article 8 rights. In immigration decisions, there was no doubt that human rights were rooted in primary legislation: s.84(1)(c) and (g) of the Nationality, Immigration and Asylum Act  2002, the “2002 Act”) allows an appeal to be brought against a decision which unlawful under section 6 of the Human Rights Act 1998 (c. 42) (public authority not to act contrary to Human Rights Convention) as being incompatible with the appellant’s Convention rights. In addition to this, there is s.33(2) of the UK Borders Act 2007 which provides, as one of the statutory exceptions  to the automatic deportation regime,  “…where removal of the foreign criminal in pursuance of a deportation order would breach (a) a person’s Convention rights”.

But then there was a move to 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.  Continue reading

Student fees, access to justice and Leveson Part II – The Human Rights Roundup

Welcome back to the human rights roundup, your weekly buffet of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.

In the news

Legal aid reforms

The proposed reforms to legal aid are divisive: they are either necessary to combat a society of blame and litigation, or a disastrous reduction of access to justice for those who can’t afford legal fees. The subject is given in-depth treatment on BBC Law in Action with Joshua Rozenberg. The podcast, discusses what effects the reform bill will have on lawyers, claimants and defendants. This post on The Justice Gap, by Alice Forbes, explores some of the more specific effects the reforms will have on the type of advice (and more importantly, legal remedies) available to claimants.

UKHRB news

In exciting news for this blog, UKHRB editor Adam Wagner has been appointed to the Attorney-General’s C panel of Counsel. See here for more detail on what this involves.

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