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President gives guidance on statutory human rights considerations

President gives guidance on statutory human rights considerations

President McCloskey has given guidance on the interpretation and effect of the statutory human rights considerations inserted into Part 5A of the 2002 Act by the Immigration Act 2014. The case is Deelah and others (section 117B – ambit) [2015] UKUT 515 (IAC) and Counsel Zane Malik’s four submissions were summarised at paragraph 3 of the determination as:

(i) Sections 117A and 117B of the 2002 Act apply only to an appeal under section 84(1)(c) of the same statute. As a result, they have no application to this appeal which is brought under section 84(1)(a) and (g).

(ii) Insofar as section 117B(4) and (5) of the 2002 Act purport to instruct Judges to attribute “little weight” to the considerations specified therein it cannot be thus construed as to do so would be to give effect to a constitutionally impermissible encroachment on the independent adjudicative function of the judiciary.

(iii) A private life “ established”, in the wording and in the context of section 117B(4) and (5) of the 2002 Act, is to be construed and confined to the initiation, or creation, of the private life in question and not its continuation or development.

(iv) The adjective “ precarious” in section 117B(5) of the 2002 Act contemplates, and is restricted to, temporary admission to the United Kingdom or a grant of leave to remain in a category which permits no expectation of a further grant.

The headnote of this case reads:

(i) Sections 117A and 117B of the Nationality, Immigration and Asylum Act 2002 are not confined to an appeal under section 84(1)(c). They apply also to appeals brought under section 84(1)(a) and (g).

(ii) Section 117B(4) and (5) of the 2002 Act, which instruct Judges to attribute “little weight” to the considerations specified therein, do not give rise to a constitutionally impermissible encroachment on the independent adjudicative function of the judiciary.

(iii) A private life “established”, in the wording and in the context of section 117B(4) and (5) of the 2002 Act, is not to be construed and confined to the initiation, or creation, of the private life in question and not its continuation or development.

(iv) The adjective “precarious” in section 117B(5) of the 2002 Act does not contemplate only, and is not restricted to, temporary admission to the United Kingdom or a grant of leave to remain in a category which permits no expectation of a further grant.

Spot the differences there? With thanks to a Birmingham based friend of the blog for the suggested format for this post.

Authors

Colin Yeo
Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder and editor of the Free Movement immigration law website.

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