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Can reducing immigration be a legitimate aim in human rights law?

It has been announced that a minimum income threshold will be introduced for foreign spouses to be eligible to come to or remain in the UK. The level will be set at £18,600 for those without children and at higher levels for those with children. In doing so on Sunday morning breakfast TV Home Secretary Theresa May is reported to have said:

“This isn’t just about the numbers though…”

Observers of Government immigration policy might be rather surprised to hear this. The Government has made very plain that the intention of its immigration policy is to reduce numbers of immigrants. This is certainly no secret. The Conservative Party manifesto for the 2010 election was very clear:

“…immigration today is too high and needs to be reduced”

All sorts of legal and policy levers have been pulled to achieve this aim since the Conservatives took office. Numbers of foreign students are being heavily reduced and a quota has been imposed on skilled worker migration, for example. These measures have not, however, been enough to meet the manifesto commitment to “take net migration back to the levels of the 1990s – tens of thousands a year, not hundreds of thousands”. The most recent figures show that immigration is actually increasing under the current Government, in fact.

So, further levers must be found, and the Government turned to family immigration. In July 2011 a consultation was launched on this issue and the very first words to Theresa May’s forward were as follows:

“This government is determined to bring immigration back to sustainable levels…

May then continued in a similar vein, specifically saying that family migration had to be reduced:

“But we have been clear that we will take action across all the routes of entry to the UK, so we must also take action on the family migration route.”

Again, the intention could not be clearer. So why would May suddenly be claiming that a central plank of the policy to reduce family migration is actually not about reducing numbers?

Because reducing immigration is probably not a legitimate aim under Article 8(2) of the European Convention on Human Rights? Article 8 reads as follows:

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.

The Government is very likely to lose the inevitable legal challenges to this new rule if it interferes with an individual’s family life in a significant way and does so for a reason that is not one of the legally permissible ones. National security cannot be invoked here, nor can public safety or the prevention of disorder or crime. The economic well being of the country might be argued, but in reality Government policy on immigration is not an economic policy, it is a social and cultural one. In any event, the level at which the income threshold is being set is based on a snapshot short term approach to economics. It is well known that immigration always boosts an economy as a whole. The protection of health or morals might also be argued, as it could be suggested that the measure is about promoting social integration. It seems a bit of a stretch to say this is a matter of protection of morals, though.

Judges are usually slow to say that politicians (or their lawyers) are being disingenuous, but the explicit public statements already made on this issue will be hard to explain away. The government is cruising for yet another legal bruising.

Free Movement
Free Movement The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.

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