The Government has finally gotten around to amending the Immigration Rules to make them a bit less human rightsy looking. This follows a number of pledges from David Cameron, Theresa May and Damian Green to do so. Paragraph 395C of the rules is to be deleted, as predicted here on Free Movement some time ago. It is, though, a futile exercise in window dressing. The rule has benefitted not a single person as far as I am aware and the UK’s human rights obligations are unaffected by the change.
The amendment is being brought into effect by Statement of Changes HC 1733 and will come into effect on 13 February 2012.
Paragraph 395C at the moment reads as follows:
395C. Before a decision to remove under section 10 of the Immigration and Asylum Act 1999 or section 47 of the Immigration, Asylum and Nationality Act 2006 is given, regard will be had to all the relevant factors known to the Secretary of State including:
(ii) length of residence in the United Kingdom;
(iii) strength of connections with the United Kingdom;
(iv) personal history, including character, conduct and employment record;
(v) domestic circumstances;
(vi) previous criminal record and the nature of any offence of which the person has been convicted;
(vii) compassionate circumstances;
(viii) any representations received on the person’s behalf.
The paragraph has been the subject of a huge amount of litigation, including the Mirza and Sapkota cases, both previously covered here. However, that litigation has been almost entirely pointless as far as I can determine. With one important caveat, I can myself think of not a single case where paragraph 395C affected the substantive outcome of the case. The factors to be considered are essentially identical to those that must be considered under Article 8 of the European Convention on Human Rights anyway. And no amendment to the Immigration Rules can alter in any way the UK’s obligations under the Convention.
The caveat is that the rather shady Legacy backlog clearance exercise was carried out under the auspices of paragraph 395C. The UK Border Agency was always very careful not to disclose any policy on how Legacy cases were to be decided, and even a Free Movement Freedom of Information request only disclosed scraps of information. I’ve heard that a test case on the consistency or otherwise of Legacy decision making is listed to be heard later this month and will bring further news if/when I hear any.
The real loss would be if the Enforcement Guidance and Instructions were amended. At the moment chapter 53 does quite a good job in parts of reflecting the UK’s human rights obligations. The relevant parts fall under the section on 395C. If that section is deleted and not replaced then it will lead to further litigation as UKBA officials ignore human rights and those who are able have to pursue court action to secure enforcement of their rights.
A new paragraph is also being inserted at paragraph 353B in relation to fresh asylum and human rights claims:
353B. Where further submissions have been made and the decision maker has established whether or not they amount to a fresh claim under paragraph 353 of these Rules, or in cases with no outstanding further submissions whose appeal rights have been exhausted and which are subject to a review, the decision maker will also have regard to the migrant’s:
(i) character, conduct and associations including any criminal record and the nature of any offence of which the migrant concerned has been convicted;
(ii) compliance with any conditions attached to any previous grant of leave to enter or remain and compliance with any conditions of temporary admission or immigration bail where applicable;
(iii) length of time spent in the United Kingdom spent for reasons beyond the migrant’s control after the human rights or asylum claim has been submitted or refused;
in deciding whether there are exceptional circumstances which mean that removal from the United Kingdom is no longer appropriate.
Additional information on the ILPA website is available here for members in which it is clearly stated in terms by the UK Border Agency that the changes to the rules do not amount to a change in policy and that chapters 51 and 53 to the EGI remain in force.
As a footnote for the lawyers, Statement of Changes HC 1733 additionally makes provision for future online applications for Tier 2 and Tier 5 of the Points Based System.