Lawyers, judges and Home Office officials are all still getting to grips with the effect of the controversial statutory ‘guidance’ to judges on Article 8 introduced by the Immigration Act 2014. One month on it is still far too early to say how it will pan out. It will be months before we have guidance from the higher courts. In the meantime, having argued a few cases so far and heard what the Home Office has to say, I reckon the impact of the Act is very far from as great as some at the Home Office assume.
Judges are told what is in the public interest and they must have regard to that, but they must still go on and weigh the public interest against the rights of affected individuals.
To recap, the Act introduced a new Part 5A to the Nationality, Immigration and Asylum Act 2002, sections 117A, 117B, 117C and 117D. You can read a detailed analysis of the text of the new provisions in this earlier blog post: New statutory human rights considerations take immediate effect. You can also read about the Home Office interpretation of these provisions here: New Home Office guidance on deportation. Interestingly, the Home Office guidance accepts that all sorts of additional factors outside the statutory scheme and the Immigration Rules are relevant in deportation cases.
The thing about Part 5A is that it is all addressed to the public interest. The text of section 117A is critical as it tells us (and the judges) what the effect of the other relevant sections is:
117A Application of this Part
(1) This Part applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts—
(a) breaches a person’s right to respect for private and family life under Article 8, and
(b) as a result would be unlawful under section 6 of the Human Rights Act 1998.
(2) In considering the public interest question, the court or tribunal must (in particular) have regard—
(a) in all cases, to the considerations listed in section 117B, and
(b) in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C.
(3) In subsection (2), “the public interest question” means the question of whether an interference with a person’s right to respect for private and family life is justified under Article 8(2).
So, the statutory considerations in sections 117B and 117C have an impact on “the public interest question”. That question is “whether an interference with a person’s right to respect for private and family life is justified under Article 8(2)”. The duty on judges is to “have regard” to the various considerations in answering the question. Judges still have to answer for themselves the question ultimately posed by Article 8(2), which is whether interference is justified on the facts of the case.
The considerations to which judges must have regard at section 117B are clearly factors to be considered alongside other unspecified factors in assessing proportionality. For example, certain things are said to be “in the public interest” (speaking English, being financially independent. “Little weight” is to be attached to other things (human rights established at a time when immigration status was precarious). There is even said to be no public interest in deportation in certain circumstances.
These considerations (other than the no public interest, which is a default victory for any claimant) interfere very little if at all with the traditional balancing exercise that is required by Article 8. They are not exhaustive: other considerations not listed might also be in the public interest, for example. Everything still has to be considered and a judgment reached. Judges are given a clear steer as to some things Parliament considers to be in the public interest but the judge must still reach his or her own conclusion.
For the deportation considerations at section 117C, the scheme works differently. It provides an exhaustive and simplistic list of what is in the public interest. Subsection (1) states that deportation of foreign criminals is in the public interest. Subsection (2) then recognises there is a sliding scale where more serious crimes mean deportation is even more in the public interest. Subsection (3) then states that “the public interest requires … deportation” unless certain exceptions apply, and those exceptions are exhaustively defined, albeit with an element of discretion for those sentenced to more than four years (but with no discretion below that, oddly).
Section 117C tells judges definitively what is in the public interest. It does not complete their task and render them as redundant as some Home Office officials believe: section 117C does not tell judges what conclusion to reach when balancing the public interest against the rights of the individual. The case of Sporrong v Sweden  5 EHRR 85 is repeatedly cited in countless Strasbourg and domestic cases on what is required when assessing proportionality:
A court must determine whether a fair balance was struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights.
Judges are told what is in the public interest, and they must “have regard” to that. They must then go on and strike a fair balance between the public interest and the fundamental rights of any affected individuals.