MigrationWatchUK warned on 26 November 2014 that, “Unless net migration falls substantially, the figures for the next decade are likely to be similar to the last decade, indeed higher”.
As the General Elections gets nearer, the issue of Immigration in the UK heats up – read more here on Alice’s blog on her views on Migration in the UK and how the UK Government are likely to get grips on immigration.
Most recent news reports state, “The Department of Homeland Security will grant temporary protected status to people from the three West African countries most affected by Ebola who are currently residing in the United States, department officials said on Thursday. People from Liberia, Guinea and Sierra Leone, in the United States, as of Thursday may apply for protection from deportation as well as for work permits, for 18 months, said a Department of Homeland Security official. After 18 months, the Secretary of Homeland Security will assess whether the protection should be extended, based on the level of the Ebola epidemic in West Africa. The move is a response to the Ebola epidemic, which has claimed more than 5,000 lives, mostly in the three West African countries. In order to prevent a mass migration from West Africa to the United States, nationals from these countries who arrive after Thursday will not be eligible for protected status. U.S. Citizenship and Immigration Services officials estimate that 8,000 people will be eligible to apply.”The Ebola response in the United States has been front and center in the United States government at high levels,” said a Department of Homeland Security official. “This designation has been part of that constant monitoring, reevaluation and reassessment of the appropriate response.”
Exclusive: U.S. to allow people from nations hit by Ebola to stay temporarily
While the United Kingdom seems more concerned in controlling mass immigration in the face of a clear need to offer some temporary form of protection against return to those originating from these 3 countries, the USA appears to be keepings its doors open for such people subject to restrictions.
The BBC Reports, “The Ebola outbreak in West Africa was first reported in March 2014, and has rapidly become the deadliest occurrence of the disease since its discovery in 1976. In fact, the current epidemic sweeping across the region has now killed more than all other known Ebola outbreaks combined. Up to 11 November 2014, 5,177 people had been reported as having died from the disease in six countries; Liberia, Guinea, Sierra Leone, Nigeria, the United States and Mali. ….” Ebola: Mapping the outbreak.
It is quite likely that those who have entered the UK from the affected countries within the last few months on visitor visas, for example, might upon those visas coming to an end, feel unable to return for fear of risk to their lives. Even those who might have arrived in the UK several years ago and have possibly, for various reasons, remained here beyond their leave to remain might not be open to a voluntary or enforced removal. Whether here legally or illegally, it seems that those potentially returnable to these countries might face a real risk to their lives or health.
If the United Kingdom were to follow the USA’s lead they would not be required at all to grant settlement but reviewable limited leave for the duration of the epidemic. Where there is no opportunity or policies in place in the UK enabling submission of applications for temporary leave from people in the UK returnable to these countries, then it will hardly be surprising that those feeling extremely reluctant to return might seek to go to ground or endeavor to continue remaining here undetected rather than be forcibly removed.
If minded to change their position, the UK government would be requested to grant temporary leave to those already here. In such circumstances then, such applications are incomparable to Article 3 medical conditions claims where the UK government is also very reluctant to grant leave to remain for applicants who claim that if returned to their home countries due to their physical or mental health condition, they would be subject to inhumane and degrading treatment contrary to Article 3 of the ECHR.
Human rights claims based on medical grounds have to meet the very high threshold in the case of “N”. The applicant must be gravely ill, at a critical stage of a terminal illness and close to death and removing them from the UK would deprive them of the treatment they are currently receiving and sending them home to an early death in circumstances which would constitute a breach of Article 3 of the ECHR. The case of “N” was considered by the House of Lords and the European Court of Human Rights, the ECHR. The ECHR upheld the position taken by the House of Lords that removing “N” who was HIV positive would not breach Article 3 and confirmed that cases where the applicant cannot resist removal and be granted leave to remain on Article 3 grounds are exceptional. The consequences to an applicant’s health of removing them from the UK could engage Article 8 of the ECHR in respect of private life including moral and physical integrity. Such cases are however considered to be rare and unlikely to add anything decisive to claims under Article 3 on the same facts. Successful human rights (medical) condition applicants are granted Discretionary Leave to remain up to a maximum of 30 months(2.5years). Applicants are eligible to apply for settlement after holding 6 continuous years discretionary leave if they were first granted Discretionary Leave before 9 July 2012. If granted Discretionary Leave to remain on or after 9 July 2012, then applicants can apply for settlement after 10 continuous years.
The Home Office may be reluctant to grant temporary leave on the basis of a defensive “floodgates” stance, however rather than remain in a state of ignorance of true immigration numbers in the UK for people from the affected countries, where an avenue to submit applications for temporary leave is available, then the Government will be in a position to know who has applied for such leave whether or not leave is granted. This would also enable the Government to know the numbers of those who may have gone to ground over the years but sought to regularize their stay on reliance upon a new policy specific to their countries.
For those seeking to make themselves known having been of irregular immigration status, rather than continue remaining in a state of immigration uncertainty potentially subject to removal, a protection policy would provide them with an opportunity to regularize their immigration status.
A shift in current policy with a view to seeking to grant temporary protection would necessitate relevant Guidance being published subject to certain criteria. Where the Government considers that a change in policy might invite more entrants from these countries, the criteria can in any case contain restrictions as regards applying only to those who have entered the United Kingdom during a certain period. The problem however is the action to be taken in relation to those who enter the UK after the cut-off date and thereafter seek genuinely to be granted protection against return. It is not recommended that the UK government shut its border to citizens from the affected countries, however screening at entry clearance posts or at the UK borders might assist in seeking to ascertain those potentially affected by the disease, but would not stop entry to the UK of those not affected by the disease who have satisfied the relevant entry visa requirements.
Where a person does not qualify for leave under the Rules or the Humanitarian Protection or Discretionary Leave Policies, leave to remain may be considered by reference to the Secretary of State’s Immigration Directorates Instructions, Chapter 1 Section 14, Leave outside the Rules. Leave to remain may be applied for to be granted outside the Immigration Rules for reasons that are particular compelling in circumstance. The Instructions state that grants of such leave are rare and are only for genuinely compassionate and circumstantial reasons or where it is deemed absolutely necessary to allow someone to remain in the UK when there is no available option. It is indisputable that the Ebola epidemic fits into these circumstances. It may be argued that the humanitarian conditions in these countries are so extreme such that the conditions meet the Article 3 threshold and return may result in degrading and inhumane treatment and most likely a loss of life.
The UK government may chose not to follow the USA lead in the meantime on the basis that the epidemic may be contained and passed over in a reasonably short time, however it may be worthwhile for the UK Government to seriously consider and appreciate the real suffering that returnees may face on return at this current time especially in cases where children might also be involved.
Those granted Discretionary Leave to Remain outside of the Immigration Rules prior to 9 July 2012 are not prohibited from accessing public funds. From 9 July 2012 the Home Office introduced new Immigration Rules, also by reference to Paragraph 276ADE of the Immigration Rules relating to private life and family life issues in reference to Appendix FM. The stated justification of prohibition on public funds is among other matters to relieve the burden on the taxpayer and safeguarding the economic well being of the United Kingdom. Therefore those in particular granted leave to remain outside the Immigration Rules on Article 8 ECHR grounds on the 10year route to settlement are generally not allowed to have recourse to public funds. Their Biometrics Residence Permit would be endorsed as “No Public Funds”.
There are exceptions to the condition such that no recourse to public funds(NRPF) will not be attached if it is established that such a person is destitute or that there are particularly compelling reasons not to impose such a condition relating to the welfare of a child of a parent in receipt of a very low income.
THE RELEVANT LEGAL PROVISIONS
Part 1 of the Immigration Act 1971 (“1971 Act”) is concerned with the regulation of entry into and stay in the United Kingdom. Section 1(2) provides that those not having a right of abode in the United Kingdom may live, work and settle here by permission and:
“…subject to such regulation and control of their entry into, stay in and departure from the United Kingdom as is imposed by this Act…”
By section 3(1)(c) of the 1971 Act:
“Except as otherwise provided by or under this Act where a person is not a
British citizen…
c) If he is given limited leave to enter or remain in the United Kingdom, it
may be given subject to all or any of the following conditions, namely…
ii) A condition requiring him to maintain and accommodate himself, and any dependants of his, without recourse to public funds….”
Section 3(2) of the 1971 Act provides that:
“The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances…;
If a statement laid before either House of Parliament under this subsection is disapproved by a resolution of that House passed within the period of forty days beginning with the date of laying (and exclusive of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days), then the Secretary of State shall as soon as may be make such changes or further changes in the rules as appear to him to be required in the circumstances, so that the statement of those changes be laid before Parliament at latest by the end of the period of forty days beginning with the date of the resolution (but exclusive as aforesaid)”.
Paragraph 6 of the Immigration Rules provides:
“public funds” means
(a) housing under Part VI or VII of the Housing Act 1996 and under Part II of the Housing Act 1985, Part I or II of the Housing (Scotland) Act 1987, Part II of the Housing (Northern Ireland) Order 1981 or Part II of the Housing (Northern Ireland) Order 1988;
(b) attendance allowance, severe disablement allowance, carer’s allowance and disability living allowance under Part III of the Social Security Contribution and Benefits Act 1992;, income support, council tax benefit and housing benefit under Part VII of that Act; a social fund payment under Part VIII of that Act; child benefit under Part IX of that Act; income based jobseeker’s allowance under the Jobseekers Act 1995, income related allowance under Part 1 of the Welfare Reform Act 2007 (employment and support allowance) state pension credit under the State Pension Credit Act 2002; or child tax credit and working tax credit under Part 1 of the Tax Credits Act 2002;
(c) attendance allowance, severe disablement allowance, carer’s allowance and disability living allowance under Part III of the Social Security Contribution and Benefits (Northern Ireland) Act 1992;, income support, council tax benefit and, housing benefit under Part VII of that Act; a social fund payment under Part VIII of that Act; child benefit under Part IX of that Act; income based jobseeker’s allowance under the Jobseekers (Northern Ireland) Order 1995 or income related allowance under Part 1 of the Welfare Reform Act (Northern Ireland) 2007;
(d) Universal Credit under Part 1 of the Welfare Reform Act 2012 or Personal Independence Payment under Part 4 of that Act;
(e) Universal Credit, Personal Independence Payment or any domestic rate relief under the Northern Ireland Welfare Reform Act 2013;
(f) a council tax reduction under a council tax reduction scheme made under section 13A of the Local Government Finance Act 1992 in relation to England or Wales or a council tax reduction pursuant to the Council Tax Reduction (Scotland) Regulations 2012 or the Council Tax Reduction (State Pension Credit) (Scotland) Regulations 2012”.
As there will be a reference to this Guidance by reference to the case law below, mention is made to the guidance relating to the imposition of a NRPF condition on grants of limited leave which is, in its October 2013 version, to be found in Part 8 of the chapter on Appendix FM of the Immigration Directorate Instructions (“the Secretary of State’s policy”) which reads:
“Those seeking to establish their family life in the United Kingdom must do so on a basis that prevents burdens on the taxpayer. The changes to the Immigration Rules implemented on 9 July 2012 are predicated in part on safeguarding the economic well-being of the UK, which is a legitimate aim under Article 8 of the ECHR (the right to respect for private and family life) for which necessary and proportionate interference in the Article 8 rights can be justified.
Under Appendix FM, limited leave:
Under the 5 year partner and parent routes;
As a bereaved partner;
As a fiancé(e) or proposed civil partner.
will be granted subject to a condition of no recourse to public funds.
In
All other cases in which limited leave is granted as a partner or a parent under Appendix FM;
All cases in which leave on the grounds of private life is granted under paragraph 276BE or paragraph 276DG; and
All cases in which limited leave is granted outside the rules on the grounds of family or private life
leave will be granted subject to a condition of no recourse to public funds, unless there are exceptional circumstances set out in the application which require recourse to public funds to be granted. Exceptional circumstances which require recourse to public funds will exist where the applicant is destitute, or where there are particularly compelling reasons relating to the welfare of a child of a parent in receipt of very low income.
Whether to grant recourse to public funds as a condition of leave under the Immigration Rules is a decision for the Home Office caseworker to make on the basis of this guidance.
Consistent with the provision of support for asylum seekers and their dependents under section 95 of the Immigration and Asylum Act 1999, a person is destitute if:
a. They do not have adequate accommodation or any means of obtaining it (whether or not their other essential living needs are met); or
b. They have adequate accommodation or the means of obtaining it, but cannot meet their essential living needs.…
The onus is on the applicant to evidence their destitution, or that there are particularly compelling child welfare considerations, on the basis of the information set out in their application and any supplementary information or evidence about their circumstances which they provide in support of their application.
In considering the applicant’s financial circumstances, the case worker should have in mind that:…
Where the applicant is granted limited leave to remain on the grounds of private life, they will generally have lived in the UK for a significant period. Where the applicant has been granted limited leave as a parent, they will also have lived in the UK for a period before applying for leave under these Rules. To show they are destitute the applicant will have to demonstrate good reasons why their previous means of support are no longer available to them.
The applicant will need to provide evidence, including of their financial position, demonstrating that, on an on-going basis, they do not have access to adequate accommodation or any means of obtaining it, they cannot meet their other essential living needs, or there are particularly compelling child welfare considerations.
Where the caseworker accepts that, even though they have the right to work if they did not before, the applicant is destitute (including accepting any previous means of support are no longer available), or that there are particularly compelling circumstances relating to the welfare of the child of a parent in receipt of a very low income, the case worker should grant recourse to public funds.
When an applicant who was granted recourse to public funds at the initial grant of leave applies for further leave to remain, they will be re-assessed and only granted further leave with recourse to public funds if they continue to be destitute, or where their continue to be particularly compelling reasons relating to the welfare of a child of a parent in receipt of a very low income.”
On 21 January 2014 the Secretary of State published guidance and a form for applicants seeking the removal of a NRPF condition- Request for a Change of Conditions of leave granted on the basis of Family or Private life- (“the January 2014 Guidance”).
The January 2014 Guidance provides:
“Eligibility for requesting an amendment to the conditions of leave
You should only complete this notification if:
You may make this request in the following circumstances:
The policy on access to public funds
The policy for those granted leave to remain on the basis of their family or private life is that leave will be granted subject to a condition of no recourse to public funds, unless there are exceptional circumstances set out in the application which require recourse to public funds to be granted. Exceptional circumstances which will normally require recourse to public funds to be granted will exist where:
A person is destitute if:
If you do not meet the terms of the policy (because you are not destitute and there are no particularly compelling reasons relating to the welfare of your child if you are a parent in receipt of a very low income), we will not normally amend the conditions of your leave to allow you recourse to public funds. You already have permission to work in the UK.
Where we accept that you have met the terms of the policy, we will amend your conditions of leave and grant you recourse to public funds. There will be no other change to your existing leave. This change of conditions will not give you an extension of the period of leave granted. If your leave is expiring, you will need to put in a new application for further leave.
If it is accepted that you meet the terms of the policy and the conditions of your leave are changed to remove the restriction of no recourse to public funds, please note that this will apply only for the length of your remaining leave. Any decision on whether you qualify for further leave, and the conditions to be attached to it, will be considered on the basis of your circumstances at the time you make that application.
This is not an application for any specific benefit and a grant of leave with recourse to public funds does not guarantee eligibility for any specific benefit. If you are granted recourse to public funds, you will still need to apply to the relevant government department (such as the Department for Work and Pensions (DWP) or HM Revenue and Customs (HMRC)) and will need to meet their entitlement conditions for access to public funds. The Home Office is not able to intervene in any disputes on this matter, and any representations in relation to your eligibility to receive specific benefits would need to be made to the relevant government department”.
The Immigration Rules also provide:
“Requirements to be met by an applicant for leave to remain on the grounds of private life.”
276ADE (1). The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant:
(i) does not fall for refusal under any of the grounds in Section S-LTR 1.2 to S-LTR 2.3. and S-LTR.3.1. in Appendix FM; and
(ii) has made a valid application for leave to remain on the grounds of private life in the UK; and
(iii) has lived continuously in the UK for at least 20 years (discounting any period of imprisonment); or
(iv) is under the age of 18 years and has lived continuously in the UK for at least 7 years (discounting any period of imprisonment) and it would not be reasonable to expect the applicant to leave the UK; or
(v) is aged 18 years or above and under 25 years and has spent at least half of his life living continuously in the UK (discounting any period of imprisonment); or
(vi) subject to sub-paragraph (2), is aged 18 years or above, has lived continuously in the
UK for less than 20 years (discounting any period of imprisonment) but there would be very significant obstacles to the applicant’s integration into the country to which he would have to go if required to leave the UK.
276ADE (2). Sub-paragraph (1)(vi) does not apply, and may not be relied upon, in circumstances in which it is proposed to return a person to a third country pursuant to Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004.”
Leave to remain on the grounds of private life in the UK
276BE(1). Limited leave to remain on the grounds of private life in the UK may be granted for a period not exceeding 30 months provided that the Secretary of State is satisfied that the requirements in paragraph 276ADE(1) are met or, in respect of the requirements in paragraph 276ADE(1)(iv) and (v), were met in a previous application which led to a grant of limited leave to remain under this sub-paragraph. Such leave shall be given subject to a condition of no recourse to public funds unless the Secretary of State considers that the person should not be subject to such a condition.
276BE(2). Where an applicant does not meet the requirements in paragraph 276ADE(1) but the Secretary of State grants leave to remain outside the rules on Article 8 grounds, the applicant will normally be granted leave for a period not exceeding 30 months and subject to a condition of no recourse to public funds unless the Secretary of State considers that the person should not be subject to such a condition”.
RECENT CASELAW
The Upper Tribunal has recently considered a judicial review challenge whereby the Secretary of State having granted the applicant limited leave to remain outside the Immigration Rules on 8 October 2013 for 30months imposed a condition on the leave prohibiting the applicant from having recourse to public funds (NRPF condition). Upon reconsideration of a decision to impose such a condition, the Secretary of State maintained that decision. The judicial review therefore challenged the lawfulness of the imposition of the NRPF condition on the applicant’s leave.
The relevant Guidance/Policy relating to the imposition of NRPF condition on grants of limited leave to remain was that of the October 2013 version.
This was a case about the conditions to be attached to limited leave to remain, where leave had been granted outside of the Immigration Rules and consequently paragraph 276BE of the Rules played no part in the consideration of whether such grant should be made subject to a NRPF condition. It was also considered that neither did paragraph 276BE(2) apply as this provision had not been introduced into the Rules until a date after the decisions under challenge in the application. The Upper Tribunal had to consider in the context of a judicial review whether there was a legal obligation on the Secretary of State to lay her Policy before Parliament and if so whether she lawfully did so. The argument was not that the Secretary of State’s Policy ought to form part of the Immigration Rules but rather that it is in the nature of a rule and therefore should be laid before Parliament.
It was considered that Section 3(2) of the 1971 Act does not distinguish between the requirement to lay before Parliament those rules relating to the imposition of conditions attached to leave granted pursuant to the Immigration Rules and those rules relating to the imposition of conditions attached to leave granted outside the Immigration Rules. The source of the Secretary of State’s power to grant leave is in both scenarios the 1971 Act. The application of the principles identified in Alvi and Munir were considered in relation to the Secretary of State’s policy.
It was noted that the January 2014 policy does not refer to the need to demonstrate exceptional circumstances in order for a previously imposed NRPF condition to be removed but only that an applicant has become destitute or was destitute at the time the condition was imposed but failed to provide sufficient evidence to demonstrate this. The Court saw no justification for a more restrictive consideration to be applied to a decision as to whether to remove a previously imposed NRPF conditions (ie destitution or compelling reasons relating to the welfare of a child) than would be applied to a decision as to whether to impose such a condition in the first place, which is not restricted to the issues of destitution and the welfare of the child. The Court viewed the terms of the January 2014 policy to provide support for a restrictive reading of the, “exceptional circumstances” criteria in the Home Office Policy.
It was the Court’s judgment that the Policy is operated restrictively in practice. It was found that a consideration under the Policy of whether “exceptional circumstances exist” does not admit of any other consideration other than whether an applicant is destitute or whether there are particularly compelling reasons for allowing recourse to public funds relating to the welfare of a child of a parent in receipt of a very low income. The Court found that the Policy lacked any flexibility and constrained a decision- maker to imposing a NRPF condition if an applicant has not met identifiable and specific criteria. It is therefore in the nature of a rule as to the practice to be followed in the administration of the 1971 Act for regulating the stay in the UK of persons required to have leave to enter, in that it is a rule relating to the conditions to be attached to such leave. For that reason the Court concluded that it should have been laid before Parliament pursuant to Section 3(2) of the 1971 Act.
The fact that the Secretary of State’s Policy, insofar as it relates to a consideration of whether to impose an NRPF condition on persons granted leave as a consequence of the Secretary of State having exercised her residual discretion outside of the Immigration Rules, was not laid before Parliament when it ought to have been, and that the Secretary of State relied upon it when imposing a NRPF condition of the applicant’s leave, in the Court’s conclusion rendered both the decision of 8 October 2013 to impose a NRPF condition on the applicant’s leave and her decision of 28 January 2014 not to remove this condition from such leave, unlawful.
The Court decided that although the Secretary of State’s Policy is no longer relied upon in determining whether to impose a NRPF condition on leave granted outside of the Rules, there was no point in quashing a policy that is no longer of application but it was sufficient to conclude that the Secretary of State’s policy of October 2013 insofar as it applies to applicants granted leave outside the rules was unlawful.
CONCLUSION
Those granted leave to remain under the spousal category are subject anyway to the requirement that they can be maintained and accommodated without recourse to public funds and as such the majority of those caught by the NRPF condition will be those who relied on private and family life arguments under the Immigration Rules or those granted limited leave to remain on exceptionality grounds by reference to Article 8 of the ECHR, outside the Immigration Rules.
Where a person is subject to the 10year route to settlement and subject to NRPF condition, it may be that very soon following the initial grant of leave they are caught in a position whereby they are left unable to work possibly due to being a single mother with a vulnerable child needing day to day care yet also being unable to have recourse to public funds. There is a need to apply in appropriate cases for a lifting of the NRPF condition where there is a risk of destitution, however more importantly where a person does manage to obtain public funds where the condition has not been lifted, there is a real risk that a future leave application may be refused under Paragraph 322(3) of the Immigration Rules unless caught by an exception. The Department of Work and Pensions can confirm if a person has claimed benefits.
With the cuts to legal aid, people needing a lifting of the NRPF are restricted in obtaining legal advice and asstiance in this regards and having regard to the Home Office justification in increasingly imposing NRPF conditions from July 2012, it is likely that such requests if not effectively prepared with relevant information and adequately supporting documents may end up being refused by the Home Office.
Those with no recourse to public funds may be able to obtain support from their local authorities under the National Assistance Act and where they have children, the Children Act 1989.
Where there is a real concern that also impacts upon immigration status in this regards, despite the legal aid cuts there are some immigration practitioners willing to assist on a pro bono basis in appropriate cases in effective presentation of a request to lift the NRPF condition.
Apparently, according to the current opinion of some ( hopefully the minority few), when it comes to interpreting and applying the law in particular that emanating from the European Court of Human Rights(ECHR), Judges are going off on a frolic of their own out-with the law. Even more apparent it now seems is that almost all of the problems that have do with the perceived inability of the UK government in controlling immigration numbers can be traced directly to Judges who are leniently interpreting human rights law. The view is that they are thus to be blamed for their contribution towards permitting large numbers of immigrants to remain in the UK. Not only are these immigrants being permitted to stay in the UK but are also being allowed to bring even more of their family members from abroad into the UK.
These views emanate from a recent article in the Telegraph published on 8 November 2014 which reports; “Human rights laws have been interpreted to pave way for mass immigration…….. But the real problem posed by loss of control over our borders stems not from the EU treaty or even laws passed by politicians. It comes from law made by judges, most notably those of the European Court of Human Rights( ECHR) as they have interpreted international treaties to mean something quite different from the way their framers intended…. It is also under this judge-ordained “right” that many immigrants have been allowed to enter the UK from elsewhere in the EU. The EU treaties explicitly guarantee” freedom of movement” only to “workers”- not to their families…. The other conspicuous problem is that we are no longer allowed to deport most of this country’s 100, 000 ” asylum seekers” back to where they came from. This is also under the Human Rights Act, as interpreted by our own judges in 1999, when they ruled that we could not return refugees to France, from where most arrive, because France (like Germany) was deemed not to be “safe” on the grounds that they might be at risk of racial or other persecution…. All this makes nonsense of claims that uncontrolled immigration could be stopped by our leaving the EU, because we would still be ruled by the ECHR… The real problem is that we have allowed judges to misuse their powers to interpret the law in ways that were simply never intended. To regain control over our borders we would first need to regain control over those unelected judges”- We can’t control our borders until we control those judges www.telegraph.co.uk.
The class of Judges caught by this criticism include not only Judges from the ECHR but inevitably UK Tribunal Immigration Judges, High Court, Court of Appeal and Supreme Court Judges who also apply ECHR case law – all these unelected Judges apparently need to be reigned in and controlled.
If these views are held by the majority in the UK, it is not at all clear where this criticism leaves the important principles of impartiality and independence of the judiciary, separation of powers and the rule of law. Alarmingly the article fails to refer to these principles and a quote from John Locke, the Philosopher cannot help but come to mind-, “Where -ever law ends, tyranny begins”.
When the Supreme Court was created in 2009, Lord Phillips of Worth Matravers, President of the Supreme Court, said; ” For the first time, we have a clear separation of powers between the legislature, the judiciary and the executive in the United Kingdom. This is important. It emphasis the independence of the judiciary, clearly separating those who make the law from those who administer it…….Justice at the highest level should be transparent and the new Court will have a crucial role in letting the public see how justice is done”. www.independant.co.uk Supreme Court Move Separates Parliament from judiciary, 1 October 2009.
Further a report of the Judicial Appointments Constitution Committee, Chapter 2 The Constitutional Framework confirms, “The principle of judicial independence, without which the rule of law is impossible is recognized as an essential feature of constitutional democracies around the world…… Judges in the United Kingdom should not be appointed through political patronage. It is important not only that the judiciary act independently, but that they are seen to do so….. The principle of accountability is also important. Judicial independence does not require that no one be held accountable…….”. www.publications.parliment.uk 2012 House of Lords- Judicial Appointments- Constitution Committee.
A House of Commons Standard Note of 15 August 2011 titled Separation of Powers states:
“Separation of powers” refers to the idea that the major institutions of state should be functionally independent and that no individual should have powers that span these offices. The principal institutions are usually taken to be the executive, the legislature and the judiciary. In early accounts, such as Montesquieu’s The Spirit of the Laws, the separation of powers is intended to guard against tyranny and preserve liberty. It was held that the major institutions should be divided and dependent upon each other so that one power would not be able to exceed that of the other two…….. The creation of an independent Supreme Court and dismantling of the many-faceted office of Lord Chancellor have unpicked some aspects of the fusion of powers. Matters have also been complicated by the Human Rights Act 1998 and its requirement for judges to consider the European Convention on Human Rights and the decisions of the European Court of Human Rights in Strasbourg………….. The second element of the separation of powers is separation between legislature and judiciary. In the UK, judges are prohibited from standing for election to Parliament under the House of Commons (Disqualification) Act 1975. Judges are expected to interpret legislation in line with the intention of Parliament and are also responsible for the development of the common-law( judge- made law)……… Constitutionally, judges are subordinate to Parliament and may not challenge the validity of Acts of Parliament. However, there remains some leeway for judges to interpret statute and this raises the question of whether the judges are able to “make the law”. There is an element of judicial law-making in the evolution of common law…. The cooperation between judiciary and legislature has been described as a “constitutional partnership” as Parliament may give tacit approval to judge-made law by not interfering with it. Lord Woolf, for example, has argued that “the crown’s relationship with the courts does not depend on coercion”, but on a state of trust. Professor Bogdanor has argued, for example, that the Human Rights Act necessitated a compromise between two doctrines—the sovereignty of Parliament and the rule of law—and that the compromise “depends upon a sense of restraint on the part of both the judges and of Parliament”…… The third element of separation is between the executive and the judiciary. The judicial scrutiny function with regard to the executive is to ensure that any delegated legislation is consistent with the scope of power granted by Parliament and to ensure the legality of government action and the actions of other public bodies. On the application of an individual, judicial review is a procedure through which the courts may question lawfulness of actions by public bodies. This requires judges to be independent of government and Parliamentary influence. The judges have traditionally exercised self-restraint or “deference” in the areas of power that they regard themselves as competent to review”.
In the area of immigration it can be put forward that the UK Government has sought over the years to break away from judgments and application of law emanating from the ECHR without in practice removing themselves from being signatories of the ECHR. In particular the changes which have applied since 9 July 2012 in relation to the Immigration Rules show that the government has sought to “codify” the Immigration Rules as they relate to private and family life considerations with the intention that the need for Judges to actually interpret and therefore “make law” in practice is reduced.
The published Home Office Statement of Intent: Family Migration of June 2012 states, “ First, we shall end the situation where those claiming the right to enter or remain in the UK on the basis of ECHR Article 8 – the right to respect for private and family life – do so essentially without regard to the Immigration Rules. The new rules will reflect fully the factors which can weigh for or against an Article 8 claim. They will set proportionate requirements that reflect, as a matter of public policy, the Government’s and Parliament’s view of how individual rights to respect for private or family life should be qualified in the public interest to safeguard the economic well-being of the UK by controlling immigration and to protect the public from foreign criminals. This will mean that failure to meet the requirements of the rules will normally mean failure to establish an Article 8 claim to enter or remain in the UK, and no grant of leave on that basis. The Immigration Rules will reflect the UK Border Agency’s duty under section 55 of the Borders, Citizenship and Immigration Act 2009 to have regard to the need to safeguard and promote the welfare – or ‘best interests’ – of children who are in the UK. The rules will set clear thresholds for the impact of an applicant’s criminality on the scope for them to be granted leave to enter the UK on the basis of their family life or leave to remain in the UK on the basis of their family or private life. The rules will also reflect the fact that family life established when the parties knew one or both of them lacked a valid basis of stay in the UK carries less weight under the case law of the European Court of Human Rights”.
SOME UK CASELAW FOLLOWING THE JULY 2012 CHANGES
Caselaw has been generated in the UK Courts following the introduction of the new Immigration Rules as they relate to private and family life as below.
Izuazu (Article 8 – new rules) [2013] UKUT 45 (IAC) provides;
“1. In cases to which the new Immigration Rules introduced as from 9 July 2012 by HC 194 apply, judges should proceed by first considering whether a claimant is able to benefit under the applicable provisions of the Immigration Rules designed to address Article 8 claims. Where the claimant does not meet the requirements of the rules it will be necessary to go on to make an assessment of Article 8 applying the criteria established by law. The Upper Tribunal observation in MF (Article 8-new rules) Nigeria [2012] [2012]UKUT 00393 (IAC) to the same effect is endorsed.
2. The procedure adopted in relation to the introduction of the new Rules provided a weak form of Parliamentary scrutiny; Parliament has not altered the legal duty of the judge determining appeals to decide on proportionality for himself or herself.
3. There can be no presumption that the Rules will normally be conclusive of the Article 8 assessment or that a fact-sensitive inquiry is normally not needed. The more the new Rules restrict otherwise relevant and weighty considerations from being taken into account, the less regard will be had to them in the assessment of proportionality.
4. When considering whether a decision is in accordance with the law, it has been authoritatively established by the higher courts that the test to be applied is not exceptional circumstances or insurmountable obstacles.
5.The UKBA continues to accept that EU law prevents the state requiring an EU law citizen from leaving the United Kingdom, although contends with good reason, that this is to be distinguished from a case where an independent adult can choose between continued residence in the United Kingdom or continued cohabitation abroad”.
Nagre v Secretary of State for the Home Office department [2013] EWHC 720 (Admin) considered also that:
“There is, in my judgment, nothing untoward in the fact that the new rules do not necessarily track absolutely precisely and provide in detail in advance for every nuance in the application of Article 8 in individual cases……., ….the new rules contemplate that there will be some cases in which a right to remain based on Article 8 can be established even though falling outside the new rules. Therefore, the basic framework of analysis contemplated by Lord Bingham Huang continues to apply, as was recognized by the Upper Tribunal in Izuazu”…. The Secretary of State does not contend that the new rules completely cover every conceivable case in which a foreign national may have a good claim for leave to remain under Article 8…”
The Government introduced paragraphs 398, 399 and 399A of the Immigration Rules in July 2012. Before the changes Immigration Judges were guided by case law in relation to considerations of circumstances in which a foreign national criminal could resist deportation on the basis of his right to family life under Article 8 of the Convention. The Court of Appeal in MF (Nigeria) v SSHD [2013] EWCA Civ 1192 concluded that the Immigration Rules in relation to deportation now provide a ‘complete code’ for the purposes of considerations of Article 8 rights as they relate to foreign national criminals however that they do not change the substantive law relating to Article 8 proportionality assessments and do not create a legal test of exceptionality for succeeding where the Rules are not met.
In Gulshan (Article 8 – new Rules – correct approach) [2013] UKUT 640 (IAC), the Upper Tribunal criticised an Immigration Judge for embarking on a ”free-wheeling” Article 8 analysis, unencumbered by the rules as this was not the correct approach. The Upper Tribunal in Gulshan summarised what it considered to be the correct position:
“On the current state of the authorities:
(a) ………….
(b) after applying the requirements of the Rules, only if there may be arguably good grounds for granting leave to remain outside them is it necessary for Article 8 purposes to go on to consider whether there are compelling circumstances not sufficiently recognised under them: R (on the application of) Nagre v Secretary of State for the Home Department [2013] EWHC 720 (Admin);
(c) the term ”insurmountable obstacles” in provisions such as Section EX.1 are not obstacles which are impossible to surmount: MF (Article 8 – new rules) Nigeria [2012] UKUT 393 (IAC); Izuazu (Article 8 – new rules) [2013] UKUT 45 (IAC); they concern the practical possibilities of relocation. In the absence of such insurmountable obstacles, it is necessary to show other non-standard and particular features demonstrating that removal will be unjustifiably harsh: Nagre.
The Secretary of State addressed the Article 8 family aspects of the respondent’s position through the Rules, in particular EX1, and the private life aspects through paragraph 276ADE. The judge should have done likewise, also paying attention to the Guidance. Thus the judge should have considered the Secretary of State’s conclusion under EX.1 that there were no insurmountable obstacles preventing the continuation of the family life outside the UK. Only if there were arguably good grounds for granting leave to remain outside the rules was it necessary for him for Article 8 purposes to go on to consider whether there were compelling circumstances not sufficiently recognised under the Rules”.
The case of Gulshan appeared be taking interpretation of Article 8 matters to restrictive extremes, the effects of which have been reigned in by the Court of Appeal in MM– this was after some months during which some Article 8 appeals were dismissed for want of passing the threshold coined as the ” Gulshan gateway” to Article 8. Gulshan might be considered an example where the Judges sought to be overly influenced by the changes in the Immigration Rules.
MM v SSHD 2014 EWCA Civ 985 in the Court of Appeal provides:
“128.There are three further cases to note where the court has analysed the correct approach to the lawfulness of an IR in principle, as opposed to whether a refusal to grant entry on individual facts was justified. The first is: R(Nagre) v SSHD a decision of Sales J.[138] The case was a challenge to the lawfulness of new IRs presented to Parliament at the same time as those with which this case is concerned. The Nagre IRs were new paragraphs 276ADE to 276CE, introduced by HC 194 and they concerned the requirements to be met by an applicant for leave to remain on the grounds of “private life”. The object of the new rules was to address more explicitly than previous IRs had done the factors which (under UK and Strasbourg case law) weigh in favour of or against a claim by a foreign national to remain in the UK, based on Article 8. Along with the new IRs, the Secretary of State issued guidance in the form of instructions regarding the approach of officials in deciding whether to grant leave to remain outside the Rules, in the exercise of the residual discretion that the SSHD had to grant such leave. It could be granted in “exceptional circumstances”, which are defined in the same terms as those applicable to the present appeals. No challenge was made to the guidance. Sales J held that the new IRs could not provide for all possible circumstances that might arise under Article 8. But the new rules would guide the decision makers in most cases. In those that were not covered by the new IRs, only if there was an “arguable case that there may be good grounds for granting leave to remain outside the Rule by reference to Article 8 that it [would] be necessary for Article 8 purposes to go on to consider whether there were compelling circumstances” to grant such leave.[139] He followed the guidance in R(Izuazu) v SSHD (Article 9 – new rules).[140] At [35] and [36] Sales J said:
“The important points for the present purposes are that there is full coverage of an individual’s rights under Article 8 in all cases by a combination of the new rules and (so far as is necessary) under the Secretary of State’s residual discretion to grant leave to remain outside the Rules and that, consequent upon this feature of the overall legal framework, there is no legal requirement that the new rules themselves provide for leave to remain to be granted under the rules in every case where Article 8 gives rise to a good claim for an individual to be allowed to remain. This had always been the position in relation to the operation of the regime of immigration control prior to the introduction of the new rules and the introduction of the new rules has not changed these basic features of the regime.
Therefore, in my judgment, the Claimant’s challenge to the lawfulness of the new rules fails. No matter how closely, or not, the new rules track the detailed application of Article 8 in individual cases, the immigration control regime as a whole (including the Secretary of State’s residual discretion) fully accommodates the requirements of Article 8. The fact that the new rules do not do that in all cases by themselves does not render them unlawful”.
129.Sales J’s decision therefore follows the logic of Laws LJ’s statements in [38]-[39] of AM(Ethiopia), analysed above. However, there is a difference in that in Nagre the new rules were themselves attempting to cover, generally, circumstances where an individual should be allowed to remain in the UK on Article 8 grounds; whereas in AM(Ethiopia) and in the present appeals the rule challenged stipulates a particular requirement that has to be fulfilled before the applicant will be allowed to enter or remain. The argument in each case is that it is that specific requirement that offends Article 8. Nagre does not add anything to the debate, save for the statement that if a particular person is outside the rule then he has to demonstrate, as a preliminary to a consideration outside the rule, that he has an arguable case that there may be good grounds for granting leave to remain outside the rules. I cannot see much utility in imposing this further, intermediary, test. If the applicant cannot satisfy the rule, then there either is or there is not a further Article 8 claim. That will have to be determined by the relevant decision-maker”.
It is therefore clear that despite the changes to the Immigration Rules, the UK Courts should where a claimant does not meet the requirements of the rules still go on to make an assessment of Article 8 applying the criteria established by ECHR caselaw.
RESTRICTIVE GOVERNMENT CHANGES IN THE LAW AFFECTING HUMAN RIGHTS CONSIDERATIONS
The Government via the Immigration Act 2014 also seeks to bring in changes which have the potential of removing rights of appeal altogether in deportation human rights cases via certification as well as seeking to “direct” how judges should interpret public interest consideration in Article 8 claims:
Section 19 of the Immigration Act 2014, now adds to the Nationality, Immigration and Asylum Act 2002 a new Part 5A entitled “Article 8 of the ECHR: public interest considerations”. Section 117A states that Part 5A applies where a court or tribunal has to determine whether a Home Office immigration decision breaches a person’s right to respect for private and family life under Article 8 and as a result would be unlawful under section 6 of the Human Rights Act 1998. In such a case the court or tribunal must have regard to the “public interest question” which means the question whether an interference with a person’s right to respect for private and family life is justified under Article 8. Section 117B sets out the public interest considerations which the court or tribunal must treat as applicable in all cases. Subsection (2) states that it is in the public interest and particularly in the interest of the economic well-being of the United Kingdom that persons who seek to enter or remain in the United Kingdom are able to speak English and are therefore less of a burden on taxpayers and better able to integrate into society. Subsection (3) states that it is in the public interest and economic well-being of the United Kingdom that such persons are financially independent and are therefore not a burden on taxpayers and better able to integrate into society. These are therefore clear instructions to courts and tribunals on how the reference in Article 8.2 to the economic well-being of the United Kingdom is to be interpreted. Section 117C sets out the additional public interest considerations in cases involving foreign criminals. The deportation of foreign criminals is considered to be in the public interest. The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal. In the case of a foreign criminal who has not been sentenced to a period of imprisonment of four years or more, the public interest requires his deportation unless Exception 1 or Exception 2 applies. Exception 1 applies where the foreign national has been lawfully resident in the United Kingdom for most of his life, he is socially and culturally integrated in the United Kingdom and there would be very significant obstacles to his integration into the country to which he is proposed to be deported. Exception 2 applies where the foreign national has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of the foreign national ‘s deportation on the partner or child would be unduly harsh. In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2. These considerations are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted.
Section 17 of the Immigration Act 2014 now adds to the Nationality, Immigration and Asylum Act 2002 a new Section 94B. A human rights claim made by a non-EEA national may be certified in the context of deportation, under section 94B of the Nationality, Immigration and Asylum Act 2002. The Secretary of State may certify the claim if the Secretary of State considers that, despite the appeals process not having been begun or not having been exhausted, removal of the person to the country or territory to which the person is proposed to be removed, pending the outcome of an appeal in relation to the person/s claim, would not be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention). The grounds upon which the Secretary of State may certify a claim include that the person would not, before the appeals process is exhausted, face a real risk of serious irreversible harm if removed to the country or territory to which the person is proposed to be removed. The result of certification under section 94B is that the right of appeal against the decision to refuse the human rights claim will be non-suspensive, meaning it will not be a barrier to removal. Any appeal can only be heard out-of-country.
The EEA Regulations have also been changed to allow non-suspensive appeals in certain EEA cases. Regulation 24AA of the EEA Regulations applies to: a person who appeals in time against an EEA deportation decision, where that appeal has not been finally determined; a person who has not appealed against an EEA deportation decision but would be entitled to do so from within the UK (this does not include out of time appeals). The Secretary of State may only give directions for the person’s removal if the Secretary of State certifies that, despite the appeals process not having been begun or not having been finally determined, removal of the person to the country or territory to which he is proposed to be removed, pending the outcome of his appeal, would not be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention). The grounds upon which the Secretary of State may certify a removal include that the person would not, before the appeal is finally determined, face a real risk of serious irreversible harm if removed to the country or territory to which he is proposed to be removed. The application of a regulation 24AA certificate does not prevent a person from lodging an appeal from within the UK, rather, by amending regulation 29 of the EEA Regulations, it removes the suspensive effect of that appeal. So, whilst a person may lodge their appeal in-country, the lodging of such an appeal does not suspend their removal from the UK.
CONCLUSION
Having regard to the changes in law sought to be introduced by the UK government in relation to codifying the relevant Immigration Rules, the practical reality is that as regards to private and family life considerations and with the effort to limit or remove human rights appeals for foreign national criminals, it appears that there is in any case a Government drive to dampen down UK Judge’s law making powers in the area of immigration and asylum.
The Immigration Rules on private and family life introduced in July 2012 properly viewed can be considered as part of the Government’s intention of having Judges in the UK not “needing” to apply and interpret ECHR caselaw when considering whether a person fulfils their strict requirements. By suggesting that the Government seek to control and reign in Judge’s powers of interpretation and law making as they apply to human rights law, there is a real and increasing danger that the role of the judiciary in this regards may be reduced to that of merely rubber stamping whatever form of law the may government seek to introduce in order to by-pass the ECHR.
“Jimmy Mubenga death: G4S guards ignored deportee’s cries before he died on airliner”, reported the Independent on 4 November 2014.
Three G4S security guards are currently on trial for manslaughter following the death of Jimmy Mubenga on 12 October 2010 on a British Airways flight from Heathrow about to take off for Angola. Following service of a criminal sentence in the UK, Mr Mubenga was due to be deported by the immigration authorities. He was being escorted by three private security guards working for Group 4 Services (G4S) contracted by the UK Border Agency. Following his death, an inquest returned a verdict of unlawful killing as it was found that Mr Mubenga, a father of five had died as a result of unlawful force being applied. Mr Mubenga had died following the use of restraint by the security guards. They held Mr Mubenga forward such that he was unable to breath properly. Shouts that he could not breath were heard by other passengers however these were unheeded by the security guards.
It is truly hoped that there never need be a loss of life during the removal process due to unreasonable force being used, however the government is under increasing pressure to effect removal of deportees in particular following the recent report on 22 October 2014 from the National Audit Office as regards Foreign National Offenders (FNO). The report found that , “Removing FNOs from the UK continues to be inherently difficult and public bodies involved have been hampered in their efforts by a range of barriers, although poor administration has still played a part……”
Amyas Morse, head of the National Audit Office also stated, ” It is no easy matter to manage national offenders in the UK and to deport those who have completed their sentences. However, too little progress has been made, despite the increased resources and effort devoted to this problem. The Government’s focus on preventive measures and early action is promising, but it has only just started to exploit these options. It needs to build on the momentum of its recent action plan….”
The government can therefore be expected to increasingly focus more on removals of those in particular who have been convicted here and served their sentence.
Although the government will effect enforced removals where a person no longer has a legal basis to remain in the UK, the question however arises as to whether the techniques employed to restrain deportees show respect for the dignity and rights of those being removed. Clearly a loss of life during the deportation process does not.
Mr Mubenga had been held in a ‘head-down” restraint position using techniques which were not part of the control and restraint techniques in which the detainee custody officers involved had been trained.
Another obvious question would be how best to approach an apparently non-compliant deportee just before a flight if not by use of some physical force. Rather than approach the issue solely from the perspective of needing to swiftly effect a “successful” removal by whatever means, it may be necessary to consider and appreciate the heightened situation of distressed intensity a deportee may find himself in during the removal process in particular as in the case of Mr Mubenga where he was leaving behind a wife and children behind in the UK. Apparently the security guards did not seek to calm the situation down with words but simply and mainly resorted to the use of force.
The government has published a Detention Services Order 07/14, Risk Assessment Guidance for Contracted Escort Staff with an implementation date of 30 August 2014. It provides guidelines on the waist restraint belt, leg restraints and the mobile chair for detainees under escort and associated risk assessment. A further Detention Services Order 06/2014, Risk Assessment Guidance for Escorted Moves- All Contractors with an implementation date of 26 August 2014 provides guidelines on handcuffs, leg restraints and escort chains on detainees under escort and associated risk assessment. Both orders recognize that the use of any restraint should be necessary, reasonable and proportionate and that unless risk is properly assessed and the use of restraints fully justified, the use of restraints is likely to amount to inhumane and degrading treatment under Article 3 of the ECHR.
The government will therefore continue to apply some restraint however where in a particular situation a deportee, in inevitable distress as will almost always be the case in an enforced removal situation, resists removal the most reasonable and proportionate course of action surely is to abandon that proposed removal rather than risk a loss of life or cause severe physical injury to a deportee. The deportee not being in a position to escape custody from an airplane can be returned to the place of detention and another removal date set for another day. The vast majority of detainees liable to removal are to be assumed to be reasonable and sensible people regardless of their place of origin and can be expected to reach a conclusion sooner or later that where there is no prospect of remaining in the UK that they will eventually have to leave. Unless a deportee seeks somehow to make themselves “indefinitely irremovable”, which may be an impossible mission long term, those that may physically resist removal more vigorously than others can also be expected to cooperate at some point with the removal process. Although it may be of some cost to the government to defer removal and cancel a flight, rather than for escorts/ security guards to seek to take a risk and use physical force in a situation which may quickly and unexpectedly escalate out of control, this may be a more reasonable, proportionate and humane course of action rather than risk a loss of life merely to effect a deportation.