What is the government proposing to do?
The government wishes to reduce net immigration to the UK as well as to prevent abuse of the immigration system. It has, therefore, made a number of proposals to tighten requirements for third-country nationals wishing to join family members in the UK, as well as to change/clarify the law relating to deportation or immigration removal of a person with family here.
What are JUSTICE’s concerns?
JUSTICE has serious concerns about a number of the proposals in the Home Office consultation paper Family Migration. In particular, the consultation paper suggests that the government will ‘clarify’ or attempt to dilute the rights to family life of third-country nationals and, in particular, those convicted of serious offences, including by amending the Immigration Rules; other proposals threaten the right to marry and found a family.
What rights are engaged and what is their application to immigration?
The right to family life is protected under Article 8 European Convention on Human Rights (ECHR). As a qualified right, it is subject to lawful restrictions provided that they pursue one of the legitimate aims listed in Article 8(2) (these are broad and include national security, the economic well-being of the UK and the prevention of disorder or crime) and are proportionate to that aim. In the context of family migration, the domestic and European case-law has established that Article 8 does not impose a general right for a family to choose its country of residence. The appropriate question, as identified in the House of Lords cases of Huang  UKHL 11 and EB (Kosovo)  UKHL 41 and in Gul v Switzerland (1996) 22 EHRR 93 in the European Court of Human Rights (ECtHR), is whether the family can reasonably be expected to enjoy their family life elsewhere. In cases involving children, the best interests of the child are a primary consideration (see ZH (Tanzania) v SSHD  UKSC 4 and also the duty to safeguard and promote the welfare of children under s55 Borders, Immigration and Citizenship Act 2009).
In relation to deportation of foreign offenders, the court will assess the proportionality of the deportation decision according to a number of factors including the nature and seriousness of the offence, the length of time the offender has been in the relevant state, his or her family situation, whether there are children and if so, their age, etc. In the recent decision of AA v UK (app no 8000/08, 20 September 2011), the court found that the deportation of a young man convicted of rape aged 15 but who had since led an exemplary life would be unlawful under Article 8 using the above factors. The Court of Appeal in JO (Uganda)  EWCA Civ 10 applied the Strasbourg court’s criteria and stressed that such cases are highly fact-specific.
In some cases, the right of men and women of marriageable age to marry under Article 12 ECHR will also apply. This is not a qualified right and although states may impose reasonable conditions on the right of a third-country national to marry in order to ascertain whether a proposed marriage is a marriage of convenience (sometimes caused a ‘sham marriage’), and if it is, to prevent it, such conditions may not restrict the right to enter into a genuine marriage (see R (Baiai) v SSHD  UKHL 53 and O’Donoghue v UK, app no 34848/07, 14 December 2010).
Other rights may be engaged; particularly, in the deportation context, the right to freedom from torture and inhuman or degrading treatment or punishment under Article 3 ECHR, also protected by the UN Convention Against Torture. The ECHR rights must be afforded to everyone in the jurisdiction without discrimination on the basis of status such as race, national origin, language, colour, birth or association with a national minority (Art 14 ECHR).
What would be the effect of attempting to dilute or restrict these rights in the Immigration Rules?
As the Immigration Rules are secondary legislation, any provisions that are incompatible with the ECHR would not affect the duty of decision-makers, including the UK Border Agency and the courts, to act compatibly with the ECHR rights incorporated by the Human Rights Act 1998 (HRA), under s6 HRA. Further, the courts would be obliged to read the Rules in a manner compatible with the rights (s3 HRA) and if this was impossible, to disapply them to the extent that they were incompatible. It is true that, while the domestic courts are obliged to ‘take into account’ the decisions of the ECtHR under s2 HRA they are not bound by them in their interpretation of the ECHR rights. However, the courts in the UK are currently following the Strasbourg case-law in this area. Any changes to the Immigration Rules that impaired the essence of the Article 8 or 12 rights or that attempted to exclude certain categories of person (eg, foreign criminals) from their ambit would be very unlikely to be followed by the UK courts. These proposals are, therefore, unworkable – but send a worrying message about the Home Office/UK Border Agency’s commitment to affording the Convention Rights to all within their jurisdiction.