The Government has made no secret of its determination to make it harder for foreign criminals to resist deportation on the ground that it would infringe their right to private and family life under Article 8 ECHR. It is no surprise, therefore, that this is one of the issues to be tackled in the Immigration Bill announced in this week’s Queen’s Speech. In the briefing notes that accompanied the Speech, the Government—somewhat cryptically—says that:
The Bill would contain provisions to give the full force of legislation to the policy we have already adopted in the Immigration Rules. The courts would therefore be required to properly reflect the balance given to the public interest when ruling on immigration cases.
So what exactly is envisaged? Last year, new provisions were inserted into the Immigration Rules, the intended effect of which was to make it much harder for foreign criminals to resist deportation on Article 8 grounds. The Rules—made by the executive and endorsed by Parliament, but not contained in primary legislation— provide that, where certain criteria are met, “it will only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors”. The assumption appeared to be that this would prevent judges, absent exceptional circumstances, from performing their normal function of determining whether deportation would be a disproportionate interference with the Article 8 right.
However, the Upper Tribunal (rightly) held that while the new Rules can “operate to enhance judicial understanding of the ‘public interest’ side of the [proportionality] scales”, they cannot relieve courts or tribunals of their obligation under the Human Rights Act 1998 to apply Article 8 itself. It was therefore still the judges’ job to decide whether a given deportation would breach Article 8—and to rule it unlawful in such circumstances. The Home Secretary concluded that Parliament’s wishes needed to be enshrined in primary legislation, because judges have not only “ignored” the Rules, but have “got it into their heads that Article 8 … is an absolute, unqualified right”.
What difference would primary legislation make?
And that brings us to the Immigration Bill. Leaving to one side May’s spectacularly silly suggestion that judges think Article 8 is unqualified (it isn’t, and they don’t), what would be the effect of elevating the relevant part of the Immigration Rules to the status of primary legislation?
The essential subtext to that question concerns the way in which the new Immigration Act, the Human Rights Act and the ECHR would relate to one another. Taken at face value, it seems that the new Act would “load the dice”, requiring judges to conclude that the public interest in deportation outweighs the individual’s right to respect for private and family life even if, on a normal proportionality analysis, the contrary conclusion would be reached. This, in turn, suggests that the effect of the Act would be to relieve the immigration authorities of their normal duty, imposed by section 6 of the HRA, to act compatibly with Convention rights.
It is, of course, possible as a matter of domestic law for Parliament to permit or require public authorities to breach the Convention. However, as is well known, section 3 of the HRA requires courts to read legislation compatibly with the Convention rights so far as is possible. One possibility, then, is that the courts would “read down” the relevant provision in the Immigration Act—by, for example, concluding that any circumstance that would imply a breach of Article 8 should be considered “exceptional”. However, such a strained interpretation seems highly unlikely. Much, of course, will depend upon the drafting of the new legislation: but it is hard to imagine that the Government would leave it open to such an interpreration.
It is more likely, therefore, that the courts will have little option but to conclude that the new Act provides for deportation in circumstances that may breach Article 8, meaning that the effect of the new Act will be to legalize, as a matter of UK law, ECHR-incompatible deportations. The most that national courts would be able to do in such circumstances would be to issue a declaration of incompatibility under section 4 of the HRA—which, of course, would not impinge upon the validity of the new Act.
However, the domestic lawfulness of the new immigration regime would be a separate matter from its compatibility with the ECHR. And a domestic legislative regime permitting Article 8 concerns to thwart deportation in “exceptional circumstances” only would be unlikely to survive scrutiny in the European Court of Human Rights. The scene would therefore be set for (yet another) confrontation with Strasbourg.
So why bother, if the writing is already on the wall? The answer to that question is hard to fathom—unless the real agenda is to provoke a showdown with Strasbourg that would be grist to the mill of those agitating for withdrawal from the Convention. Had someone suggested that interpretation of events to me two or three years ago, I would have thought them guilty of unjustified cynicism. But now, I am not so sure. It has been suggested elsewhere that the Government is waging a “war on law”. Whether or not that rhetoric is apposite, developments not only in relation to human rights, but also in the areas of judicial review, legal aid, and open justice, make it hard to dismiss the notion that the Government increasingly sees law and judges as an unwelcome irritant.
Of course, that is no bad thing; if courts reliably delivered judgments with which the Government was deliriously happy, then something would be very wrong with the system. But the inherent flexibility of our unwritten constitution demands that Government (and Parliament) should exercise self-restraint in order that legal accountability to tribunals and courts remains a real brake upon executive authority. Against that background, it is hard to avoid the conclusion that the Immigration Bill forms part of a much bigger picture in which such self-restraint is increasingly absent.