In my first post on section 19 of the Immigration Act 2014, I explained that it sets out to modify the way in which courts and tribunals determine immigration cases. It does so by directing judges to have regard to certain considerations when adverse immigration decisions are challenged in reliance upon the right to respect for private and family life enshrined in Article 8 of the European Convention on Human Rights. In particular, the Act stipulates how the “public interest” is to be understood—providing, for example, that the “deportation of foreign criminals” and the “maintenance of effective immigration controls” are “in the public interest”; that “little weight” should be attached to certain matters (e.g. a private life established whilst unlawfully present in the UK), and that the public interest requires the deportation of foreign criminals outwith exceptional circumstances.
This might, as I noted in my first post, seem to place UK law on a collision course with the Convention, thus preparing the ground for a stand-off between the UK Government and the European Court of Human Rights comparable to that which is presently on-going in relation to prisoners’ right to vote. However, I also pointed out that section 3 of the Human Rights Act 1998 requires the new immigration provisions to be read, so far as is possible, compatibly with Article 8, and that such consistent construction is likely to be possible given that the considerations laid down in the Act are ultimately only matters to which courts and tribunals are required to “have regard”.
Does this mean that section 3 of the HRA entirely undercuts the new immigration legislation, rendering it legally pointless (even if it serves a political purpose by demonstrating governmental toughness in the immigration arena)? Probably not. What Article 8 requires—and, in particular, what can count as an adequate justification for deporting someone when that interferes with their right to respect for private and family life—is not a cut-and-dried, scientific matter. It necessarily engages the question whether the public interest secured by deportation is sufficient to justify the interference. That something, such as deporting foreign criminals or people who cannot speak English, is (said to be) “in the public interest” does not mean that, in all the circumstances of the case, the public interest is necessarily capable of serving as a sufficient justification for doing them. And the question of sufficiency, in turn, ultimately reduces to one of proportionality.
In this regard, the House of Lords Constitution Committee, in its report on the Immigration Bill, makes an important point:
These [questions about proportionality] are delicate matters of constitutional balance and judgement. Nonetheless—and this is the crux of the matter as far as the Immigration Bill is concerned—there is nothing in any of the domestic jurisprudence to suggest that proportionality is exclusively a matter for the courts. Parliament also has a meaningful contribution to make in ensuring compliance with the requirements of the Convention, including the principles of legal certainty and proportionality. This is reflected in the Human Rights Act 1998 itself, in the courts’ case law and in constitutional practice. Under the Act ministers and Parliament review the compatibility of bills with Convention rights. The judicial role comes into play only after a bill is enacted. In numerous cases the Supreme Court has recognised that there is a constitutionally important role for parliamentarians in deciding how individual rights and the public interest should be balanced. In AXA General Insurance, for example, Lord Hope of Craighead noted that “elected members of a legislature … are best placed to judge what is in the country’s best interests as a whole” not least because of “the advantages that flow from the depth and width of the experience of … elected members and the mandate that has been given to them by the electorate”.
The Immigration Act therefore invites the courts to attach a degree of weight—in other words, to defer—to Parliament’s view about where the public interest lies. But deference does not—or certainly should not—reduce to unthinking judicial servility. Properly understood, it amounts to the ascription of weight to another’s view in the light of that other’s superior institutional or democratic competence. In relation to a matter such as immigration, there can be no legitimate objection to Parliament flexing its democratic muscle by setting out its conception of where the public interest lies, or to its requiring courts to take account of that view. But nor can there be any legitimate objection to courts and tribunals continuing to exercise the powers granted to them by Parliament through the HRA, so as to ensure that official decision-making complies with Convention rights.
This places in sharp relief the relationship between the judiciary and the legislature, raising questions about their respective roles under the HRA and, more broadly, under the constitutional separation of powers. An obvious criticism of legislation such as the Immigration Act is that it amounts to a legislative incursion into a judicial domain. But, as the House of Lords Constitution Committee points out, it does not necessarily follow that the legislature has no role to play in relation to questions of proportionality. The reality of the proportionality test—and of the way in which it is shaped by the concept of deference—makes for a more complex relationship between judicial and legislative authority. It is therefore necessary, if the implications of the Immigration Act are to be fully appreciated, to look carefully at the nature of the proportionality test and of the extent to which deference to legislative judgment can legitimately be accommodated within it.
The distinct stages of proportionality review
Although the structured nature of the proportionality test was much-vaunted even before the inception of the HRA, courts have, until quite recently, made relatively little of it. Yet the structure of the test—and, in particular, the distinction between the necessity and fair-balance questions—is now more transparently acknowledged. For instance, in Bank Mellat v Her Majesty’s Treasury (No 2)  UKSC 39, Lord Sumption said:
[T]he question [whether a measure is proportionate] depends on an exacting analysis of the factual case advanced in defence of the measure, in order to determine (i) whether its objective is sufficiently important to justify the limitation of a fundamental right; (ii) whether it is rationally connected to that objective; (iii) whether a less intrusive measure could have been used; and (iv) whether, having regard to these matters and the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community.
It is possible to take issue with the way in which Lord Sumption expresses stage (i) of the test, since the inclusion of the word “sufficient” really only begs the questions which the subsequent stages of the test seek to answer. With that caveat in mind, it is worth thinking about the potential implications of the new provisions in the Immigration Act upon the different stages of proportionality review. In particular, it is worth considering stages (iii) and (iv), at which much of the heavy-lifting tends to be done, and which questions about the intensity of review—and hence about the court-administrator relationship and the role of deference—arise most acutely. In fact, two distinct but related questions arise. First, to what extent are the new provisions relevant to the courts’ role at each of those stages? And, second, to the extent that those provisions are relevant, what effect are they likely to have?
As I have argued elsewhere—including in a blog post and a longer paper—the necessity and fair-balance stages are quite different in nature from one another and, as a result, considerations of deference play out quite differently at those two distinct stages. The necessity question is ultimately a technical one that requires predictions to be made about the likely efficacy of rival ways of addressing the relevant issue. (E.g. could public safety be adequately protected by steps less Draconian than deporting the individual? Would lesser measures be sufficiently effective?) If this analysis invites deference on the part of the reviewing court, then the reason for such deference—and hence its proper extent—will consist of the decision-maker’s superior institutional competence. This is not to suggest that the decision-maker always has superior institutional competence: merely that when it does, this is a legitimate reason to defer at the necessity stage of the analysis.
The fair-balance question is different, since it calls upon the court to balance factors that may be incommensurable—such as the right to respect for private and family life and the public interest in public safety or the economic well-being of the country. Until each of the matters that are in tension with one another are invested with value by the court or tribunal, comparison is rendered impossible by their underlying incommensurability. It follows that the fair-balance question reduces to a value judgment in a way that the necessity question does not. As a result, whereas the necessity question may attract deference on institutional-competence grounds, the fair-balance test is more likely to invite deference on democratic-legitimacy grounds. As Laws LJ put it in Miranda v Secretary of State for the Home Department  EWHC 255 (Admin):
It appears to require the court, in a case where the impugned measure passes muster on points (i) – (iii), to decide whether the measure, though it has a justified purpose and is no more intrusive than necessary, is nevertheless offensive because it fails to strike the right balance between private right and public interest; and the court is the judge of where the balance should lie. I think there is real difficulty in distinguishing this from a political question to be decided by the elected arm of government. If it is properly within the judicial sphere, it must be on the footing that there is a plain case.
The Immigration Act and the necessity and fair-balance questions
Where does this leave the Immigration Act 2014? Its relevance to the necessity stage of the proportionality test must be limited. For one thing, Parliament’s specification of what the public interest means—or, at least, of what the courts must have regard to when determining what the public interest means—does not directly speak to the question whether the relevant public interest could be advanced in a way that would be less restrictive of the right. The answer to that question must exist independently of what the relevant public interest is and how it is to be understood in the particular circumstances of the case. It follows that deference to Parliament’s view in relation to the necessity question would be inapposite both because the view that Parliament has advanced does not directly bite upon the matters that arise for consideration at the necessity stage and because, in any event, any deference that the Immigration Act might legitimately invite is grounded in Parliament’s democratic legitimacy, a consideration not directly in play at the necessity stage.
In contrast, the Act does speak directly to the fair-balance question—by signalling the value that Parliament ascribes to immigration control generally and to deportation in particular types of circumstances—and it is strongly arguable that it is right and proper for courts and tribunals to ascribe some weight to the legislature’s view in relation to such matters. As such, the new provisions in the Immigration Act 2014 can be understood as a potentially legitimate contribution by Parliament to the process of shaping the relationship between individual rights and the public interest.
However, that potential legitimacy will be realised only if the courts firmly bear two points in mind. The first is that Parliament’s contribution is really only relevant to the final-stage, fair-balance question, the prior, necessity question being one that does not turn upon the respective values that are to be ascribed to the individual right and the public interest in immigration control. As a result, many cases are likely to be resolved—on the ground that deportation is not necessary—before the court or tribunal ever gets to the point of the analysis at which deference on democratic-legitimacy grounds to the value judgments enshrined in the new legislation would become relevant. The second point is that even in cases that do reach that stage, sight must not be lost of the fact that proportionality is—and remains—a legal question to be answered by courts. In the course of answering it, there may be legitimate scope for weight to be ascribed to views of other constitutional actors, Parliament included: but due deference should not be confused with blind submission.