Article 8 Rules

carolina bracken, 19 June 2012

Last week’s statement on family migration and amendments to the Immigration Rules came as part of the Home Office’s dogged effort to drive down non-EU immigration. Although the changes have a far wider scope, much of the media hype has centred on those relating to ‘foreign criminals’, and in particular their ‘abuse’ of Article 8 ECHR to trump the far weightier public interest in deportation. The revised Rules purport to explicitly embody rights considerations, and thus justify the limitations they impose on the courts’ ability to scrutinise the legality of individual immigration decisions. However, though the Home Secretary’s general aims are not necessarily without merit, her approach is unusual and somewhat confused.

Theresa May has set two bold aims for the new Rules. Firstly, they are intended to halt the perversion of Art 8 by the courts. In the context of Art 8 immigration decisions, the Home Office argues, the courts have been unable to “show deference to the judgment of the decision-maker”; the new Rules will fill “this public policy vacuum by setting out the Secretary of State’s position on proportionality”. Secondly, the Home Secretary will seek to “meet the democratic deficit” in which Art 8 currently flounders, by asking MPs to recognise that Art 8 is “a qualified right” and that its scope should be “contained” within the Immigration Rules.

So what has sparked the need for such determined action? According to the Home Secretary, the courts themselves have requested help from Parliament in this area. In her oral statement, she explained: “[T]he judiciary has, in effect, said to Parliament, ‘You need to set out what is the public interest and where the balance of public interest lies’.” It seems that the Home Office has extrapolated this entreaty from some obiter comments in Huang, a 2007 House of Lords decision. Though the Lords recognised the “general administrative desirability of applying known rules if a system of immigration control is to be workable, predictable, consistent and fair” [16], it is “a premise of the statutory scheme enacted by Parliament,” the Court explained, that an applicant “may fail to qualify under the Rules and yet may have a valid claim by virtue of article 8”. The Immigration Rules and supplementary instructions, the judgment continues, “are not the product of active debate in Parliament”. They do not, therefore, have “the imprimatur of democratic approval” and could not rightly “be taken to strike the right balance between the interests of the individual and those of the community” to be made under Art 8(2) [17].

It seems that the Home Office has drawn from this two principal conclusions; firstly, that by subjecting the scope of Art 8 to some form of parliamentary debate, the courts will be compelled to submit to the new regime; and secondly, that by explicitly including within the Rules a definition of the Art 8(2) balance, the judges’ role will be reduced to assessing the proportionality of the rules themselves, rather than individual decisions taken under them.

Though not quite Catgate Mark 2, this thinking does portray a somewhat creative approach to the interpretation of judicial comments. It is quite a logical leap to conclude that the mere observation that an applicant outside the scope of the Rules may nonetheless have a valid Art 8 claim amounts to a plea for a Parliamentary definition of proportionality.

The Current Law

At present, Part 13 of the Immigration Rules sets out the framework for deportation decisions:

364. Subject to paragraph 380 [human rights exception], while each case will be considered on its merits, where a person is liable to deportation the presumption shall be that the public interest requires deportation…[I]t will only be in exceptional circumstances that the public interest in deportation will be outweighed in a case where it would not be contrary to the Human Rights Convention…

380. A deportation order will not be made against any person if his removal in pursuance of the order would be contrary to the United Kingdom’s obligations under the Convention…

In addition to these robust provisions, there is a legislative presumption in favour of deporting ‘foreign criminals’ (non-British citizens convicted in the UK). Under s.32 of the UK Borders Act 2007, a deportation order “must” be made (s.32(5)) in relation to any foreign criminal sentenced to either at least 12 months imprisonment (Condition 1, s.32(2)) or any period of imprisonment where that person is a “serious criminal” (Conditions 2, s.32(3)). The few, narrow exceptions to this mandatory rule are contained in s.33, including Exception 1, “where removal of the foreign criminal in pursuance of the deportation order would breach a person’s Convention rights” (s.33(2)).

Operating within this framework, the courts seem far from insensible to the gravity properly afforded the public interest in deportation decisions. In Masih, for example, the UTIAC set out basic principles derived from case law to be considered in this context. “Deportation of foreign criminals,” the Court stated, “expresses society’s condemnation of serious criminal activity”. More specifically, “[i]n a case of automatic deportation, full account must be taken of the strong public interest in removing foreign citizens convicted of serious offences”. “[V]ery serious violent offences” can outweigh an Art 8 claim “even if they were committed by a minor”.

The Changes

Under the new amendments, key paragraphs in Part 13 will be substituted for a new rights-integrated model. Paragraph 380 will be removed altogether, and 364 largely replicated, but without the express rights exception:

396. Where a person is liable to deportation the presumption shall be that the public interest requires deportation. It is in the public interest to deport where the Secretary of State must make a deportation order in accordance with section 32 of the UK Borders Act 2007.

397. A deportation order will not be made if the person’s removal pursuant to the order would be contrary to the UK’s obligations under…the Human Rights Convention. [Italics added]

So far, so similar. The crux of the latest changes, however, comes from paragraph 398 onwards. In sum, where an applicant has received a custodial sentence of between 12 months and 4 years, they are a “persistent” offender, or their offending has caused “serious harm”, deportation will be proportionate under Art 8(2) save in the narrow circumstances of Paragraphs 399 and 399A.

Paragraph 399 applies where the applicant has:

1. a “genuine and subsisting parental relationship” with a child in the UK who is under 18 and has either been in the UK for at least 7 years or is a British citizen, and it would not be reasonable to expect the child to leave the UK and there is no other family member who is able to care for the child in the UK, or
2. validly lived in the UK for 15 years, has a “genuine and subsisting relationship with a partner” who is a British Citizen or settled in the UK, and there are “insurmountable obstacles to family life with that partner continuing outside the UK”.

Paragraph 399A applies where the applicant has lived continuously in the UK for at least 20 years, or is under 25 and has spent at least half his life in the UK, and has “no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK”.

The Rules relating to applicants sentenced to at least 4 years imprisonment are even more prescriptive (Paragraph 398(a)): “Family or private life (including the best interests of any child, even though always a primary consideration) will not outweigh the public interest in seeing the person deported where they have received a custodial sentence of at least 4 years unless there are exceptional circumstances.”

Impact of the New Rules

It is quite clear that this uncompromising regime is intended to straightjacket the judges, and in presenting her oral statement to the House, Mrs May confidently stated that she had “every expectation that [the motion] will have an impact on how article 8 is interpreted in the courts”. No doubt the Home Secretary will hope that the force of parliamentary debate will provide extra gravitas to the new regime, and coax the judges into compliance. Yet even then, it may be that the Rules are seeking to achieve too much.

For one, in terms of raw numbers, the problem seems to be overstated; according to the Home Office’s own figures, fewer than 10,000 cases were granted discretionary leave on Article 8 grounds in 2012, and many of these applicants would still qualify under the new regime. Moreover, only 185 of these were ‘foreign criminals’, and the Joint Council for the Welfare of Immigrants has revealed that between 2% and 8% of foreign prisoners facing deportation won their Article 8 appeals.

What’s more, the reasons for using a parliamentary motion as the vehicle for rendering the Rules a “democratic compromise” (Huang [17]) are not immediately obvious. The rules have a “rather unusual” status (Odelola, [6]); as “statements of administrative policy” ([35]), the correct question cannot be “what Parliament intended, the question is what the Secretary of State intended”. “The rules,” Lord Brown continues, “are her rules and, although she must lay them before Parliament, if Parliament disapproves of them they are not thereby abrogated” ([33]).

More fundamentally, however, the alleged force of today’s motion and the Rule amendments is somewhat misleading. Art 8 is by nature a qualified right. It is difficult to see what impact a motion “recognising” this fact could properly have on its application, or how such a rigid regime can fairly claim to achieve true ‘balance’ in this fact-sensitive area. The Home Office contends that this inflexible framework will not “dispense” with the courts’ role of review, but rather shift that review from individual cases to the “proportionality of the Rules themselves”. If the rules are proportionate, then only in truly exceptional cases will a decision taken in accordance with them be incompatible with Art 8 (the second cousin to the exceptionality test explicitly rejected in Huang [20], perhaps).

“The starting-point of such a review will be that Parliament has decided how the balance should be struck. Although Parliament’s view is subject to review, it should be accorded the deference due to a democratic legislature. If proportionality has already been demonstrated at a general level, it need not, and should not, be re-determined in every individual case.” (para. 22)

In seeking to restrict potential judicial intervention, the new Rules appear to sidestep Art 8, rather than define it, making certain factors all but absolute in Art 8 decisions. This amounts to a predetermination of individual cases, allowing one factor to trump other considerations, and effectively ousting the judges from fact-based decisions. Indeed, the House of Lords in E B Kosovo dismissed “the search for a hard-edged or bright-line rule to be applied to the generality of cases” as “incompatible with the difficult evaluative exercise which article 8 requires” ([12]), and was unequivocal that “the consideration of an appeal under article 8 calls for a broad and informed judgment which is not to be constrained by a series of prescriptive rules” ([21]).

Such disregard for the fact-finding advantages enjoyed by the courts grates against the very purpose of human rights review; “human rights are there to protect individuals from arbitrary interference into their lives by the state. It would be strange if the state got to be the judge in its own case.” In any case, the Rules alone cannot remove individual immigration decisions from Art 8 protection. Merely pushing immigration decisions through the rights-incorporated rules does not render them categorically rights-compatible. Any further manoeuvre to eliminate judicial discretion would not be possible without sweeping legislative amendments, primarily to HRA, s.6. There is no real prospect of the Home Secretary introducing such changes, particularly over the discrete issue of family migration.

This is not to say that the courts should have a free rein over immigration (or any other) policy on the basis of human rights (or anything else); simply that the courts seem more sensible to the power-balance with the Executive than the Home Secretary seems to allow. If some immigration decisions based on Art 8 are politically unpalatable, it is the result not of recalcitrant courts but of the state of the law they are applying. Indeed, the recent crusade against the use of Art 8 in immigration cases is premised on the perceived need to admonish maverick judges, yet many of the worst examples of human-rights-gone-wild spring not from legal fact but “misinformation, myths and partial reporting”.

The courts will no doubt consider the new Rules in future Art 8 immigration cases, and their new formulation may well have an effect on the outcome of those decisions. But this impact may not be as extensive as the Home Secretary seems to predict. And if it does fall below her expectations, there is always the risk that the judges will slip even further into being scapegoated for inconvenient results. Huang made explicit that the purpose of resolving rights issues at home is to “obviat[e] or reduc[e] the need for recourse to Strasbourg”, and as Geoffrey Robertson QC told the Sunday Times, “[h]owever merciless Mrs May may be, hard cases make bad law and politicians make bad judges”. By seeking to curtail the application of Art 8 in this way, the Rule amendments may achieve little, other than, paradoxically, to encourage a new generation of rights challenges in the courts.