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.   

Removal of appeal rights raises significant human rights issues

The Joint Committee on Human Rights warns of considerable human rights implications in limiting rights of appeal

The government’s immigration bill raises significant human rights issues, concludes a report scrutinising the proposed legislative reforms.

The Committee's report, published in early December, says limiting rights of appeal poses a serious threat to the ability of applicants to access the legal system to challenge unlawful immigration decisions.

The proposed changes have largely escaped the media’s attention despite the bill’s restrictions on benefits and access to services having drawn interest.

Currently applicants have a right to appeal against any of the 14 immigration decisions contained within the Nationality, Immigration and Asylum Act 2002, including entry refusals.

The radical changes would see the right of appeal exercisable against just three types of decisions as well as limitations to the grounds that can be raised in appeal.

Under the new provisions, the right of appeal will only exist in regards to asylum or humanitarian protection refusals, revocation of humanitarian protection or refugee status, or refusals of human rights claims.

Appeals in these categories will only be permitted on the ground that the decision in question is unlawful under Section 6 of the Human Rights Act or is in breach of the UK's obligations towards those who meet the criteria for humanitarian protection or refugee status.

Challenges to the lawfulness of decisions in which there may have been a misinterpretation or misapplication of the law or the Immigration Rules, or in which there may have been a failure to take a child’s best interests into account, for example, will not be permitted by appeal.

Such challenges may be able to take place via an administrative review, according to the bill’s explanatory notes. But the Committee has concerns this new review system represents a potential departure from the common law right of access to a court to challenge unlawful administrative decisions.

The government, on the other hand, claims there is no breach of this common law right since appeal rights or access to judicial review will remain available to all migrants, even if not on a full merits-based review on appeal basis.

Yet proposals to reform both legal aid and judicial review may impact on the availability of judicial review as an effective form of remedy, warns the Committee.

The bill, headlined as the government’s centerpiece of its legislative programme and figuring in the Queen’s Speech in 2012, is designed to reduce the pull-factors which attract illegal immigrants, stop abuse of public services and facilitate the removal of people who are in the UK illegally.

Despite having been pushed through its early stages at light speed, it has seemingly disappeared. The delay, due to “a lot of legislation before the House” according to Andrew Lansley, the Leader of the Commons, is more likely down to an amendment tabled by Tory backbencher Nigel Mills.  

The amendment, backed by almost half of all Tory backbenchers, seeks to halt the lifting of labour restriction on Romanians and Bulgarians in the UK. Illegal and unworkable, it is likely the cause of the bill having been pulled and its timetable rescheduled so that it conveniently doesn't reappear until labour controls have been lifted in January.

Committee concerns over other proposed changes in the bill relating to appeals include objections to limiting the court’s power to consider new matter and the reliance on the availability of judicial review as an effective remedy for out-of-country appeals.

Furthermore, the Committee expresses being “uneasy” about the unprecedented provision to give “little weight” to Article 8 claims based on an applicant’s private or family life in immigration cases.

Perhaps glaringly of all, the bill makes no mention of Section 55 of the Borders, Citizenship and Immigration Act 2009 pertaining to children. While the government has clarified nothing in the bill will change the duties outlined in this section, guidelines as to how the provisions in the bill will work alongside those in Section 55 haven’t been issued.

Further stinging criticism of the bill was published earlier this week in a briefing note by the UNHCR. The refugee agency warns the bill could create, “a climate of misunderstanding and ethnic profiling that could undermine the longer-term prospects for integration… and prove detrimental to social cohesion.”

Public concern about the bill to date has largely focused on the effect the new restrictions will have on non-British living in the UK, including legal refugees and asylum seekers, along with others lacking clear-cut immigration status.

However, the impact of the rules on British citizens married to non-EEA spouses applying for entry clearance or further or indefinite leave to remain are significant, with 50 per cent of entry clearance appeals to the First Tier Tribunal currently successful according to government statistics.

Rather than spur any improvement in the UK Border Agency’s well-documented poor decision-making, the bill’s removal of appeal rights looks set to make challenging unlawful administrative decisions even harder or simply impossible.

Sham marriages: more Tory fluff?

When it comes to immigration, we’re seeing an increasing tendency for politicians to lean on feelings rather than facts. Take Theresa May’s newly published Immigration Bill which tackles, among other things, so-called ‘sham marriages’.

Despite the fact fewer than 2,000 suspected cases of ‘marriages of convenience’ - defined as marriages concluded: ‘With the sole aim of circumventing the rules of entry and residence,’ by the Council of Ministers of the EU - were reported by registration officials in 2012, the Immigration Bill will see further anti-shotgun marriage measures introduced by April 2015.

The notice period for marriage will increase from the current 15 days to 28 days to allow officials more time to investigate the authenticity of the marriage and to take action should there be reasonable cause for concern. Furthermore, officials will be given the power to extend this period for up to 70 days should a need for further investigation or the prosecution or removal of those involved be deemed necessary.

On the surface, the crack down seems legitimate. But when you factor in that the UK is the most likely of all EU countries to uncover and to punish against such marriages, one could be forgiven for thinking the problem has been exaggerated in order to justify the solution.

Perhaps the UK is just very efficient at uncovering sham marriages but this seems unlikely given the Border Agency’s reputation for inefficiency hidden behind a smokescreen of tough talk. By the Home Office’s own estimates, between 4,000 and 10,000 people a year lodge applications to remain in the UK based on false marriages. Whether these figures support a ‘pressing social need’ which can be used to justify such intrusive action is a matter of debate.

In assessing the genuineness of proposed marriages, we can assume the Home Office will look at the immigration history of the applicant and evidence supporting the authenticity of the marriage. Situations which are likely to come under scrutiny include partnerships in which there is a wide age gap between partners or where the two parties come from vastly different backgrounds or have no common language.

But this one-glove-fits-all approach fails to recognise that social and economic status are often leading factors in a person’s decision to marry, with UK residency rights potentially adding to the attractiveness of a would-be spouse. What we could start to see in the UK is those believed to have even partly based their decision to marry on immigration being excluded alongside other genuine couples who are unable to successfully demonstrate the legitimacy of their relationship simply because their circumstances do not fit the typical profile.

Not just an objective of the Immigration Bill, stopping sham marriages is one aim of the immigration rules pertaining to the sponsorship of non-EEA partners for settlement in the UK. The rules, which include a steep financial requirement which must be met by the sponsor along with a five-year probationary period before the applicant can qualify for Indefinite Leave to Remain, were introduced in July 2012.

As UK immigration laws become harder to comply with, even for genuine couples, it follows that those who don’t qualify might resort to desperate measures in order to enter and remain in the UK. So, ironically, making the already stringent rules surrounding marriage and immigration even harder to fulfill may see a rise in abuse by those who can't take lawful paths to residency. 

In looking at government policies in this area, one could conclude that the aim to prevent fraud through sham marriages is part of a wider desire to stop immigration through marriage altogether. This conveniently fits with the government’s aim to reduce yearly net migration to the ‘tens of thousands’ by 2015. Indeed, Theresa May would likely prefer it if Brits stopped marrying non-Brits altogether so that the pesky inconvenience of sham marriages stops getting in the way of her pulling up the drawbridge.

But regardless of whether the need to crack down on sham marriage is legitimate or just more Tory hyperbole, the government has a responsibility to defend its reasoning behind such measures with facts not fluff.

Reactions to May’s heavily criticised Immigration Bill

Thursday’s publication of Theresa May’s flagship Immigration Bill, which spells further bad news for migrants, has triggered a wave of negative reaction. Here, we quote some of the responses:

“A bill, most of all, that sends a message that the United Kingdom is a bitter, paranoid, timorous, small-minded kind of country,”

Alex Massie, blogging for the Spectator

“There seems to be nothing in the promised bill to tackle problems at border control, which is getting increasingly shambolic, nor deal with long delays in getting electronic checks in place, or the UKBA bureaucratic failings that have prevented foreign criminals being deported,”

David Hanson, Shadow immigration minister

“Obviously landlords cannot replace the Border Agency and they shouldn't be asked to do their job,”

Richard Lambert, National Landlords Association chief executive

“These new measures will undoubtedly lead to wrongful denial of access to housing and bank accounts for those with a right to live in the UK,”

Maurice Wren, Refugee Council chief executive

“The government have said this bill is about encouraging people who don’t have a legal right be in the UK to ‘go home’. But from our work with young refugees and migrants across the country, we know that for many children, returning home is just not possible. This bill will make it even harder for these children to access vital services including healthcare and housing,”

Peter Grigg, The Children’s Society director of campaigns and policy

“I'm a Tory, but I can see these impractical measures for what they are: a foolhardy attempt to curry favour with a certain brand of swing voter,”

Garvan Walshe, writing for The Guardian

“Charging international students access to the NHS because they apply for their visa, come to the UK to spend on average GBP 36,000 on tuition alone, and are checked when they arrive on campus is introducing another unfair tax,”

Daniel Stevens, National Union of Students international officer

“I’m not quite sure how - if you can't get a bank account and you can't get somewhere to stay - whether that is actually going to result in people leaving the country,”

Michael Forsyth, former Secretary of State for Scotland

“… the Society has real concerns about the government’s suggested reform of the appeals system for deportation and limitations on established rights under Article 8 of the European Convention,”

Mark Stobbs, Law Society director of legal policy

“Forcing doctors and landlords with the threat of punishments to carry out the work of the border control agency is utterly wrong,”

Nigel Farage, leader of the UK Independence Party

“[The charge for students is] an indiscriminate levy and should also be scrapped – as they pay extremely high fees to study already,”

Habib Rahman, Joint Council for the Welfare of Immigrants chief executive