Article 8 and the public interest

Immigration analysis: The government claims its Immigration Bill will simplify and improve immigration law. Catherine Meredith, a barrister at Doughty Street, considers the Court of Appeals decision in MF (Nigeria) and warns that the new Bill could be open to challenge as being unconstitutional, unlawful and incompatible with human rights if passed in its current form. Original news Policy Paper: Immigration BillOverview of the Bill The Immigration Bill, which is currently before Parliament, contains provisions aiming to make it easier to identify and remove illegal immigrants and to make it harder for illegal immigrants to live in the UK. The government hopes the Bill will complete its progress through Parliament by the end of the third session and implementation of its provisions will start by summer 2014. It also seeks to set out in statute where it considers the public interest to lie in relation to the proportionality assessment in art 8 immigration cases. Publication of the Bill immediately followed the decision of the Court of Appeal in MF (Nigeria) v Secretary of State for the Home Department, which is the highest level judicial consideration of the governments attempt to incorporate art 8 considerations within the Immigration Rules issued in July 2012. MF (Nigeria) v Secretary of State for the Home Department [2013] All ER (D) 78 (Oct), [2013] EWCA Civ 1192 The Court of Appeal, Civil Division, provided guidance on the proper interpretation of rr 398, 399 and 399A which were introduced into the Immigration Rules HC 395 in 2012 in circumstances where it dismissed an appeal made by the defendant Secretary of State after the Upper Tribunal (Immigration and Asylum Chamber) set aside an earlier decision to deport the claimant who was a failed asylum seeker with a criminal record in the United Kingdom but would not be deported due to his rights under art 8 of the European Convention on Human Rights (ECHR). What did the Court of Appeal decide in MF (Nigeria) v Secretary of State for the Home Department? The appeal by the Secretary of State for the Home Department (SSHD) was dismissed. The SSHD conceded the new Immigration Rules of July 2012: did not change the law but reflect Strasbourg jurisprudence did not herald a restoration of the exceptionality test disapproved by Huang (Huang v Secretary of State for the Home Department; Kasmiri v Secretary of State for the Home Department [2007] UKHL 11, [2007] 2 AC 167) should be interpreted consistently with the Strasbourg jurisprudence [The court decided]:

 the Upper Tribunal (UT) in MF were correct in that the Immigration Rules do not perfectly mirror the Strasbourg jurisprudence and do not expressly provide for consideration of all questions relevant to art 8 claims (para *39+) where paras 399 and 399A of the Immigration Rules do not apply, it will only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors (para *36+) the phrase in exceptional circumstances: should be interpreted consistently with other factors found in Strasbourg jurisprudence as to proportionality (paras [38][39], [44]) is used in the sense that family ties are forged in the knowledge that immigration status is precarious (paras *41+, *42+) compelling reasons are the exceptional circumstancessince great weight is attached to criminality applicants may only succeed if their circumstances are sufficiently compelling (para *43+) decision-makers must undertake a two-stage assessment: if the appellant received a sentence of less than four years consider whether paras 399-399a are satisfied if not, or the appellant received a sentence of more than 4 years, proportionality is to be assessed applying Strasbourg criteria the Immigration Rules form a complete code the UT had conducted a meticulous assessment of the facts and factors for and against deportation there was no basis to interfere with the decision in favour of MF The court did not decide whether insurmountable obstacles (rather than reasonableness) was compatible with the ECHR but inclined to the view of the UT in Izuazu (Article 8new rules) [2013] UKUT 00045 (IAC) that a stringent approach to the former would be contrary to art 8. Does the decision apply to all immigration applications and decisions where art 8 could be relevant, or just in relation to the deportation of foreign national offenders? The decision concerned the interpretation of the rules on deportation but the general principles may inform the determination of questions of interpretation in other (non-deportation) cases. In any event, the decision impacts in non-deportation cases by confirming that: no exceptionality test has been introduced the Strasbourg proportionality criteria continue to govern appeals a two-stage approach to proportionality is to be undertaken How does the Immigration Bill propose to deal with this issue? What factors will be given more weight than others? By seeking to dictate where the balance lies in art 8 cases under Part 2 of the Bill (see Clause 14 (Article 8 of the ECHR: public interest considerations) which inserts a new part 5A Article 8 of the ECHR, public interest considerations into the Nationality Immigration and Asylum Act 2002).

Part 2 of the Bill: drastically reduces appeal rights, and specifies matters to which the courts must have regard in art 8 cases and the weight to be attached (s 117B deals with all cases and s 117C with foreign criminals), of these: factors such as integration, burden on the tax-payer and criminality are deemed to be in the public interest little weight is to be given to private life formed while status was precarious more weight is given to criminalityexceptionally high thresholds must be reached to resist deportation (reintroducing exceptionality via the back door) What are the problems with this approach? If the Bill passed as currently drafted, would it be open to challenge and on what grounds? There is much to say about the glaring problems with this approach. Comment is necessarily restrained here to characterising the Bill as an example of ill-conceived legislationpoor in quality which is not conducive to justice, and, furthermore, it brings the legislature, even the rule of law, into disrepute (Lord Neuberger President of The Supreme Court, on Justice in an Age of Austerity). (For more detail see, amongst other things, the ILPA Briefing for the Immigration Bill House of Commons Second Reading 22 October 2013). In short order, and without prejudice to the full gamut of arguments to be articulated, the Bill would be open to challenge as being unconstitutional, unlawful and incompatible with human rights, amongst other things, because: the Home Secretary made a statement that the provisions of her Bill are compatible with the ECHR, pursuant to the Human Rights Act 1998, s 19 (1)(a), but the provisions in the Bill are to the contrary the purpose of the Immigration Rules was to clarify the executives view on how the balance is struck between the public and private interest in art 8 cases (Home Office Statement, 13 June 2012)the Immigration Bill seeks Parliaments endorsement of the same the provisions re-interpret art 8 and are incompatible with domestic and Strasbourg case law on its interpretation the Bill seeks to circumvent confirmation by the courts that Strasbourg principles govern the proportionality assessment under art 8 Parliament is dictating to the courts how to approach their judicial taskwhich strikes at the separation of powers and raises critical questions of the effectiveness of human rights adjudication in this country the provisions are unworkable since any art 8 case is fact-sensitive but the legislation assumes a limited number of factual scenarioshowever human life, family life, does not operate in this way (in finite boxes) the provisions may be incompatible with the ECHR, EU law and international instruments including, among other things, the UN Convention on the Rights of the Child, the UN Convention on the Rights of Persons with Disabilities, the Council of Europe Convention on Action against Trafficking in Human Beings etc

 the provisions restricting appeal rights amount to breach of procedural safeguards and prevent access to justice The UKs re-definition of art 8 in primarily legislation in a way that is incompatible with Convention case law is obviously problematic. As to whether it is within the UKs margin of appreciation, this concept is prone to misuse and misunderstanding. The preferred view is that the margin of appreciation is a tool in the hands of the Strasbourg court, not of the member state. In any case, the Bill exceeds any margin by a long way. While a member state may be given leeway as to the adoption of measures it considers most appropriate to pursue legitimate aims in art 8(2)it does not give member states carte balance to re-write the interpretation of art 8 in domestic law and overrule previous Convention jurisprudence. The protection of Convention rights must be practical and effective and not rendered useless, theoretical or illusory, which this hostile piece of draft legislation seeks to do. Catherine Meredith is a human rights and public law practitioner specialising in ECHR and EU law. Her particular focus is on asylum and immigration and trafficking. She also acts in civil claims for damages against public authorities. Catherine built up expertise in these areas with the AIRE Centre, Council of Europe and UNHCR. Interviewed by Kate Beaumont. The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.