Judges told how to interpret immigration rules

In July 2012, the government made an extraordinary move in telling judges how to interpret new immigration rules when challenged in court.

This curbing of judicial powers has more recently been seen in proposals for a new immigration bill which include a directive to the judiciary to give “little weight” to Article 8 claims based on private of family life in immigration cases.

The provision didn't sit well with the Joint Committee on Human Rights, whose December 2013 report scrutinising the reforms contained within the bill expressed the Committee’s uneasiness over such guidance.  

This remarkable new approach of ensuring judicial deference, pioneered by Theresa May, redefines the concept of the rule of law by restricting the right of judges to balance individuals’ Article 8 claims against the state interests outlined in the second part of the article.

Not to mention it conveniently helps the home secretary to deport undesirables without consideration for their private or family life.

The immigration rules introduced in July 2012 dictate how the balance should be struck between individual rights and the public interest in a shift intended to fill a “public policy vacuum”, according to the Statement of Intent.

Indeed, the statement suggests judges have been craving such guidance on parliament’s view, presumably unable to use their own discretion in determining immigration claims based on private or family life.

Now they need simply defer to the government interpretation of proportionality for guidance rather than formulate an independent decision based on the balancing of individual and state rights. Proportionality has apparently already been demonstrated at a general level.

Furthermore, this so-called public policy vacuum is astonishingly referred to as a “democratic deficit”. Yet what this move to curb judges’ powers ensures is that the judiciary follows government policy in making immigration decisions rather than engaging in decision-making based on the principle of the rule of law.

If this doesn't sound more democratic than judges holding the government to account, that’s because it isn't. The state’s interests are already protected in the second part of Article 8, rendering this judicial deference unnecessary. 

With proportionality now based on deference to the Secretary of State’s view, Article 8 claims are no longer getting fair consideration since the rights of the individual are not properly weighed against those of the state.

While the rules may have been sanctioned by parliament, albeit in a most unusual way which did not see proper debate or sufficient scrutiny, this in itself does not make them lawful. Even with judges working within the government’s guidance on Article 8, the rules may be struck down by the courts.

The MM & Ors v Secretary of State for the Home Department case didn't go so far as to strike down the rules as unlawful. But Judge Justice Blake did determine the rules as unjustified and disproportionate, in a judgment that demonstrates even parliamentary guidance on how to interpret immigration rules is not enough to guarantee legal challenges to government immigration policies will not be made.