Section 19 of the Immigration Act 2014 raises some important constitutional questions about the respective roles of courts and legislators in relation to human-rights matters. When it enters into force, section 19 of the 2014 Act will insert a suite of new provisions into the Nationality, Immigration and Asylum Act 2002 concerning the way in which courts and tribunals deal with cases in which deportation is resisted on the ground that, contrary to Article 8 of the European Convention on Human Rights, removal would breach the individual’s right to respect for private and family life. More specifically, the new provisions will direct courts and tribunals as to how they should determine “public interest questions” arising in such cases—that is (as s 117A(3) of the amended 2002 Act will put it) “the question of whether an interference with a person’s right to respect for private and family life is justified under Article 8(2)”. This raises the question whether the new legislation will require UK courts and tribunals to decide cases in a way that might breach Article 8, by requiring them to make determinations as to the public interest that may not pass muster in the European Court of Human Rights. And this, in turn, begs the question whether the Immigration Act ignite a conflict between that Court and the UK Government such as the one that is presently on-going in relation prisoners’ right to vote.

The new provisions

The background to s 19 of the Immigration Act is the frustration apparently felt within government—and frequently evident in the popular press—at the extent to which Article 8 constrains, or at least is perceived to constrain, its ability lawfully to deport foreign nationals. Particular controversy is attracted by the possibility of foreign criminals resisting deportation in this manner. The new provisions that the 2014 Act will insert into the 2002 Act are intended to address this perceived problem. They do so by instructing courts and tribunals to “have regard to” considerations set out in the legislation concerning how the public interest is to be understood in these circumstances.

The provisions inserted into the 2002 Act by the new legislation say that it is in the public interest that there is an effective system of immigration control, and that immigrants can speak English and are financially independent. Meanwhile, the Act says that little weight should be given to a private life or a relationship that is established by a person at a time when the person is in the United Kingdom unlawfully, or that is established when the person’s immigration status is precarious.

The new provisions are more prescriptive still in relation to foreign criminals. The deportation of such individuals, the legislation states, is “in the public interest”—and the more serious the offence, the greater that public interest is. The Act then draws a distinction between those who are and are not sentenced to at least four years’ imprisonment. The Act provides that the public interest “requires” deportation of those not sentenced to at least four years’ imprisonment unless one of two exceptions applies. The exceptions are that:

  1. The person concerned has been lawfully resident in the United Kingdom for most of his life; is socially and culturally integrated in the United Kingdom, and there would be very significant obstacles to his integration into the country to which he would be deported.
  2. The person concerned has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of deportation on the partner or child would be unduly harsh.

Meanwhile, those sentenced to at least four years’ imprisonment are even less likely to be able to defeat the public-interest argument, since the Act provides that the public interest requires deportation unless “there are very compelling circumstances, over and
above those described in Exceptions 1 and 2”.

Article 8: the right to respect for private and family life

A crucial question raised by these provisions—and, in particular, by the provisions concerning foreign criminals, given their prescriptiveness—is whether they require domestic courts to decide cases in a way that conflicts with Article 8 ECHR. The legislation, of course, is framed in terms of shaping the courts’ decision about what counts as a public interest capable of justifying a prima facie infringement of the right. However, the question remains whether the Act’s assessment of what constitutes a public interest capable of amounting to an Article 8 justification is fully consistent with what actually amounts to a justification for Article 8 purposes. Or might the Act be defining the public interest—and so the circumstances in which deportation may occur—more broadly than Article 8 does?

It is worth recalling exactly what Article 8(2) says about the state’s competence to interfere with the right to respect for private and family life:

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

It is undoubtedly possible to justify interference with the private and family life of some foreign criminals—such as those who pose a threat to public safety or the rights of others on account of the risk of reoffending—by reference to the criteria laid down in Article 8(2). It is, however, far from clear that deporting all foreign criminals except those who can establish “compelling circumstances” within the narrow meaning given to that term by the Act can be justified on Article 8(2) grounds. On the face of it, therefore, it may seem that the new legislation may oblige courts and tribunals to decide somes cases in a way that will result in breach of Article 8, by imposing a public-interest test that does not accurately map on to the conception of public interest found in the Convention itself.

Are we therefore about to see a re-run of the prisoner-voting debacle, with UK law and the Convention on a collision course with one another? It seems hard to imagine that the government has not conteplated such a possibility—not least because the Immigration Act 2014 is, in this respect, a response to the failure of its attempt administratively to diminish the impact of Article 8. When the Immigration Rules were amended so as to direct courts and tribunals about how the public interest should be understood, the Upper Tribunal (rightly) held that while the new Rules could “operate to enhance judicial understanding of the ‘public interest’ side of the [proportionality] scales”, they could not 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: she said that judges had “ignored” the Rules, and contended (wrongly) that judges had “got it into their heads that Article 8 … is an absolute, unqualified right”.

Hence the Immigration Act 2014. Will this succeed where the amendment of the Immigration Rules (from the government’s standpoint) failed? One question that the new Act does not address in terms is its relationship with the HRA. Nothing in the Act explicitly displaces the duty of courts and tribunals, as public authorities, to act in accordance with the Convention rights (as required by s 6 of the HRA). Nor is s 3 of the HRA rendered inapplicable: courts and tribunals will therefore have to interpret the new deportation provisions compatibly with Article 8, so far as that is possible. And given that the framework set out in the new legislation merely amounts to matters to which courts and tribunals are (non-exhaustively) required to “have regard”, it seems likely that courts will be able to give effect to the new provisions in a way that avoids breaches of Article 8. This analysis is consistent with that contained in the first report of the Joint Committee on Human Rights on the Immigration Bill:

The provisions in the Bill which seek to guide courts and tribunals in their determination of Article 8 claims in immigration cases do not purport to go so far as to determine individual applications in advance or to oust the courts’ jurisdiction. They merely require courts and tribunals to have regard to a list of public interest considerations when deciding whether an interference with a person’s right to respect for private and family life is justified under Article 8(2) ECHR. The new statutory provision does not seek to make the prescribed public interest considerations exhaustive, or to exclude other considerations from being taken into account when determining the Article 8 compatibility question: the court or tribunal “must (in particular) have regard to” the public interest considerations listed in the provision.

Like the Immigration Rules which these statutory provisions replace, as interpreted by the Court of Appeal in the recent case of MF (Nigeria) v Secretary of State for the Home Department, the scheme of the legislation therefore “expressly contemplates a weighing of the public interest in deportation against ‘other factors'”, which the Court of Appeal in that case considered “must be a reference to all other factors which are relevant to proportionality and entails an implicit requirement that they are to be taken into account.” The Government’s express acceptance in the case of MF that the Immigration Rules should be interpreted consistently with the Strasbourg jurisprudence on Article 8 ECHR therefore applies equally to the provisions in the Bill and on that basis we are satisfied that the provisions … are not on their face incompatible with Article 8 ECHR.

So why bother? If courts and tribunals will give effect to the new legislation in a way that is compatible with Article 8, was the legislation a waste of time—or least nothing more than a cynical public-relations exercise designed to exhibit toughness that will once again be ignored by liberal judges? The extent to which the new legislation will impact upon judicial decisions in Article 8 cases—consistent construction pursuant to s 3 of the HRA notwithstanding—turns upon issues of administrative law concerning the proportionality test and the doctrine of deference, factors that are necessarily engaged when courts and tribunals make determinations about the public interest in Article 8 (and other qualified-rights) cases. In a second post, I will argue that s 19 of the Immigration Act may well make some difference, by triggering judicial deference to legislative judgment on democratic grounds, but that it is likely to make less difference than the Government would ideally like.

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