Theresa May Qualifies a Qualified Right

Claire Physsas — 

As the third in a series of blog posts on the radical new July 2012 immigration rules we turn now to the Home Secretary’s attempt to “define” the right to family and private life under Article 8 of the European Convention on Human Rights, which is incorporated into our domestic law in the Human Rights Act 1998.

Article 8 reads:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. 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 well-being 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.

According to Theresa May, the absence in the Rules of any definition of the proportionality requirements under Article 8(2), has led to “unpredictability and inconsistency, which are anathema to good administration”.

This is not a long overdue expression of concern about the standard of UKBA decision-making. Rather, the stated purpose of the Home Secretary is to “shift” the role of the Courts from reviewing the proportionality of individual administrative decisions to reviewing the proportionality of the Rules. In effect, the Courts are to be required to apply the definition of proportionality within the Rules.

For decades domestic courts and the European Court of Human Rights have refrained from defining proportionality with any rigidity. So how has the Home Secretary fared in rising to the task?

Under the new Rules an individual can apply for leave to remain on the grounds of private and/or family life. An application form must be submitted unless for example he/she is in immigration detention and/or subject to removal directions.

The requirements for leave to remain under private life, under paragraph 276ADE of the Rules, include a condition of residence for a set period, dependent upon the age of the applicant: an adult applicant must have lived in the UK for at least 20 years or have no remaining ties in his country of origin; if under the age of 18 years, the requirement is at least 7 years; if over 18 but under 25 years, the individual must have lived in the UK for most of his life. This excludes many who have lived in the UK for years.

Even if an applicant can establish 20 years, he will only be granted an initial period of leave for 30 months and will not be entitled to indefinite leave to remain until he has accumulated 120 months’ of such leave. This creates a very long route to settlement under “Article 8”.

The 7 years’ requirement for those under 18 years is reminiscent of the 7 years’ concession for children, which was withdrawn by the Home Secretary because the protection afforded by Article 8 was considered to be sufficient. This is political backtracking. The Home Secretary is now acting inconsistently with the previous approach by attempting to define the circumstances where Article 8 protection should apply.

There is also a suggestion in the Rules that the Home Secretary can refuse an application even if the requirements for “private life” are satisfied: less weight will be attached to private life in the UK established following refusal of an earlier application for leave to remain under the same provisions. One is left wondering how much weight will be given to this. It risks uncertainty and inconsistency.

As for “family life” under the Rules, the provisions are contained in Appendix FM. They apply to those that have a family life with a person who is settled in the UK, a British citizen or limited leave as a refugee or person in need of humanitarian protection. So it does not cover everyone who might have established a family life and be in need of protection under Article 8.

There are financial and English language requirements, which one can see in the individual provisions for each category e.g. under spouses, children, other dependent relatives. However, whilst these requirements might be relevant on one view, there has never been a suggestion by the UK Courts that such requirements are in any way determinative of an Article 8 assessment.

Part 10 of the Immigration Rules “the General Grounds for Refusal” will not apply to family route cases. But this is not a sign of leniency. There are “suitability criteria” defined in the Rules, which effectively replicate the requirements under Part 10.

There are two exceptions to the application of the “family life” requirements, where: (i) the family life is with a child who has been in the UK for 7 years – again the 7 years Rule is re-introduced into the Immigration Rules – and “it would not be reasonable to expect the child to leave the UK”; (ii) the family life is with a partner who is a British citizen, settled person or person in need of international protection and there are insurmountable obstacles to family life continuing outside the UK.

As for Exception 1, the requirement of reasonableness is not defined. The Rules do not reflect the statutory duty to consider a child’s best interests under section 55 of the Borders, Citizenship and Immigration Act 2009, and the voluminous case law that has followed, most notably ZH (Tanzania) [2011] UKSC 4.

Under Exception 2, “insurmountable obstacles” is not defined either. In any event was found not to be the correct test in VW (Uganda) [2009] EWCA Civ 5, following the judgment of the House of Lords in EB (Kosovo) [2008] UKHL 41. The test is one of reasonableness. In Huang [2007] UKHL 11 it had been confirmed that there is no need to establish “exceptionality” in order to succeed under Article 8. The new Rules try to introduce these requirements.

The Rules and exceptions do not cover every conceivable case. In Chikwamba [2008] UKHL 40 it was held that Article 8 claims should generally be determined in-country (as confirmed recently in Hayat (Pakistan) [2012] EWCA Civ 1054) and this is irrespective of the circumstances of the case. Nor do the Rules reflect the principle in Beoku-Betts [2008] UKHL 39 that the Article 8 rights of the family unit as a whole must be considered. And the list goes on…

Therefore what is most concerning is that the Rules incorporate definitions of Article 8 considerations that the Courts have explicitly previously rejected.

The Home Secretary purports to “shift” the role of the Courts. But the courts have a constitutional role in our democracy. They have a duty to act in accordance with the European Convention on Human Rights, and therefore Article 8, under section 6 of the Human Rights Act 1998. Therefore, irrespective of Article 8 “under the Rules”, the courts must consider the compatibility of a decision (and the Rules) under Article 8 and should still apply the test in Razgar [2004] UKHL 27. There is also the statutory duty to consider a child’s best interests where children are involved, which the Rules simply do not mention at all.

This begs the question: what is point of the new Rules if the courts are required to consider Article 8 “under the Rules” as well as free-standing Article 8 rights? This will lead to unnecessary duplication. The Rules are detailed, rigid but do allow scope for discretion on the part of the Home Secretary. The changes merely compound the uncertainty and inconsistency they purport to address.

The unfortunate effect is to qualify a human right that is already qualified.

Claire Physsas

Claire Physsas

Posts

8 responses to Theresa May Qualifies a Qualified Right

  1. Examine the absurdity of 20 years residence rule for an adult applicant. In essence, it’s enforcement , nay, even it’s mindless introduction is not different from,in effect almost identical to, ‘ the Trial by Ordeal’ under the Draconian law which operated something like this;-

    A mere suspect, with hands tied behind his back, legs shackled and a millstone hung round his neck, was thrown into the sea with the proviso that, if he swam ashore, he was deemed innocent, if not, he was guilty as charged.

    Quite clearly, this 20 years rule is precisely the millstone with its incumbent inhumane uncertainties that one has to endure before even being considered for a grant of leave or removal as nothing is guaranteed. And all for what ? An effective immigration control in A Tory led democracy – a sort of democracy carved out of the preposterous principles of Draco and fast morphing into the respectable Image of an Apartied regime.

  2. John Donkersley 16 August 2012 at 3:15 pm

    Does anyone else support the conspiracy theory behind these rules changes? this is tthat Theresa May knows that the courts will ignore the proportionality provisions in appendix FM and 276ADE, and come to their own conclusions. She wll then whip up a campaign in the press to withdraw from all or some of the ECHR, using arguments about sovereignty and foreign prisoners and any other case she can find!

  3. I have left comments on this web site before and I completely devistated by these new rules. I have been in contact with people at the Family Immigration Alliance web site and they posted my family’s story. Here is our story

    http://familyimmigrationalliance.wordpress.com/2012/08/17/tonis-story/

    The more stories they have the more they can show how these in-human rules actually affect people…. the people of Britian….. how it taking away their human rights and freedoms. This should now be allowed, unless Britian wants to be ruled by a dictator. We must join together and fight this in every way possible. Tell your story and be heard!! Best of luck to everyone trying to get through this, I feel your pain :(

  4. Magpie’s View 20 August 2012 at 11:55 am

    What is most worrying is that the Home Secretary is deliberately introducing Immigration Rules she knows to be unlawful. A cynical person may think that her plan is as follows – When called up it, as she inevitably will be, she will try to argue that as the Immigration Rules are ‘passed’ by Parliament, the judiciary are undermining the peoples representatives. She will, however remain deathly silent about the lack of any ‘declaration of incompatibility’ in the rules. (just as she was deafeningly silent about that Samoan chap who established a family life with an English rugby ball)

  5. Cases like ZH (Tanzania) arise out of rights provided/potected by the ECHR and ICRC. Therefore logically they can’t be overruled unless the UK courts or the Strasbourg court were to decide differently. Also the HRA is primary legislation and the immigration rules are not. So although I’m not a lawyer with detailed knowledge of all relevant legal principles, I think I warm to the conspiracy theory and qualify as a cynical person.

    The implementation of ECJ Zambrano is still pending. There will no doubt be cases on this and being an EU matter, the ECJ has the final word.

    Also it is probably a matter of time until someone applies without meeting the new criteria but with a British spouse and/or child, then they’ll need to appeal the refusal.

    I can’t see any reason for all this. Why interfere with human rights just to tell tabloid-oriented people that immigration is decreasing (or appearing to)? Surely it’s not very “big society” to seek to split people up like that or force Britons to emigrate.

    And the ECHR is going to stay, the whole of Eastern Europe is now part of it, the UK withdrawing is not politically viable. Who knows, one day the government might also openly state that the ECHR is a Council of Europe matter instead of letting those against it act as if it were a result of EU membership.

  6. @John Donkersley – i absolutely believe this is a ploy by the Tories to attack the HRA. I have some sympathy with the new rules, most notably the increased maintenance requirement for sponsoring a foreign spouse, but some of the new rules are deliberately provocative and one is left with the distinct impression that the Home Office are spoiling for a fight

  7. I have started my own campaign against the new immigration rules that the British government have brought into effect that will prevent a family life, unless you earn a minimum of £18,600 or £22,400 if there is a child involved, a further £2,400 will be required for each further child.
    We cannot allow the government to take away our rights like this, these rules have been deemed unlawful by the courts, yet Theresa May, Home Secretary, still wished to pursue these rules for her own individual political benefit.
    Please “like” my Facebook page and let’s take action against these harsh rules: http://www.facebook.com/​UniteFamiliesFightForLove?ref=t​s

    Please “register” on my forum http://ufffl.forumotion.co.uk/ for the latest developments that we are planning in order to overturn these rules, we will not tolerate these rules.

    Please be patient while we build and strengthen our campaign, thank you!!

Trackbacks and Pingbacks:

  1. NCADC on UKBA criteria for asylum decisions – Unheard Voices - 22 August 2012

    [...] also talks about the new rules on the use of Article 8, the right to a private life: Part of the weighing up decision had to be, [...]