ECHR and Controlling Mass Immigration -Apparently Immigration Judges are not part of the solution but largely the problem

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.

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