Since 2 October 2000, convention rights have applied incontrovertibly in domestic UK law (from the 1950 European Convention on Human Rights (ECHR) and given further effect by scheduling to the Human Rights Act 1998 (HRA)).

There was considerable discussion from 1997 about which rights would be litigated in future years, on the basis of the jurisprudence of the European Court of Human Rights (ECtHR) at Strasbourg, in the three jurisdictions of the United Kingdom (UK): England and Wales; Scotland; and Northern Ireland.

Some commentators anticipated that art.8 (the right to respect for private and family life) would be important, as the basis of a new domestic right to privacy. Few, if any, predicted that the family life aspect of art.8 would play a significant role in UK immigration law and practice; this regulates the entry (and possibly exit) of non-nationals, from outside the European Economic Area (EEA), whether as visitors, students, workers, investors or residents.

Overview of Topic

1. This article looks at legislative, executive and judicial attempts to limit such art.8 cases since 2000, a project led by successive Secretaries of State (SoS) for the Home Department, of whom there have been six Labour, one coalition Conservative and three Conservatives in the past 18 years.

2. It considers the following topics: the structure of art.8 in immigration cases; how the SoS might theoretically limit its effect in tribunals and courts; the failed attempt to do so through the Immigration Rules; the failing attempt to do so through statute; the mixed response of the senior judiciary; and future prospects.

The structure of Article 8

1. Article 8, which makes no express reference to immigrants (they are included by implication), provides that:

a. Everyone has the right to respect for his private and family life, his home and his correspondence.

b. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

2. The 1963 protocol number 4 (to the ECHR) deals with expulsion of nationals individually and non-nationals collectively, but the UK, which signed it at the time, has not ratified this protocol in the succeeding fifty plus years. The question of non-nationals is, therefore, somewhat underspecified in international human rights law as applied to the UK.

3. A number of points may be made about the right to private and family life. First, art.8(1) is described as the permissive (or right) clause, which turns on respect. Second, art.8(2) is the limitation clause, giving public authorities (but perhaps not other private individuals) a defence of justification. Third, the Strasbourg concept of proportionality, involving a factual balancing exercise between the individual and community (perhaps not state), is decisive. And fourth, the legitimate aims in art.8(2) do not include immigration control expressly, though economic well-being or the rights and freedoms of others may be argued, as embracing immigration control, albeit with difficulty.

4. Lord Bingham characteristically explained Strasbourg jurisprudence to common lawyers belatedly in 2004, with a procedural template: "In a case where removal is resisted in reliance on art.8, the(se) questions (for the court) are likely to be: (1) will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect for his private or (as the case may be) family life?; (2) If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8?; (3) If so, is such interference in accord with the law?; (4) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health and morals, or for the protection of the rights and freedoms of others?; (5) if so, is such interference proportionate to the legitimate public end to be achieved?...The answering of question (5), where that question is reached, must always involve the striking of a fair balance between the rights of the individual and the interests of the community which is inherent in the whole of the Convention." (R. (on the application of Razgar) v Secretary of State for the Home Department (No.2) [2004] UKHL 27; [2004] 2 A.C. 368 paras 17 and 20). The interests of the community, which Lord Bingham took from Strasbourg jurisprudence, are not necessarily identical to those of the State: however, in a liberal democracy, Parliament and even the Government - which are representative in the wake of a general election - arguably have some authority to articulate the interests of the community.

5. The then senior Law Lord went on to conclude: "Decisions taken pursuant to the lawful operation of immigration control will be proportionate in all save a small minority of exceptional cases, identifiable only on a case by case basis (para.20). The SoS arguably took this sentence too literally (ignoring "lawful operation" and "case by case basis"), extracting a legal test of exceptionality from the sentence. Three years later, Lord Bingham had to clarify the law: "It is not necessary that the appellate immigration authority…need ask in addition whether the case meets a test of exceptionality. The suggestion that it should is based on an observation of Lord Bingham in Razgar, para.20. He was there expressing an expectation, shared with the Immigration Appeal Tribunal, that the number of claimants not covered by the rules and supplementary directions but entitled to succeed under article 8 would be a very small minority. That is still his expectation. But he was not purporting to lay down a legal test" (Huang v Secretary of State for the Home Department [2007] UKHL 11; [2007] 2 A.C. 167 para.20). There is no test of exceptionality in domestic art.8 immigration cases, and there never has been.

6. At Strasbourg (with rules of consistency but not precedent), there had been a series of immigration cases from the 1980s, involving removal from a member state and even extradition to another state. The ECtHR respected the right of a State in international law to control immigration: Abdulaziz v United Kingdom (A/94) (1985) 7 E.H.R.R. 471 paras 59-60, 61-3 and 66-9. But gradually (and even in this landmark decision), it came to assess each expulsion case in terms of proportionality: even foreign criminals, with private or family lives, were given protection against removal/deportation: Beldjoudi v France (A/234-A) (1992) 14 E.H.R.R. 801 paras 65-80; Boultif v Switzerland (54273/00) [2001] 2 F.L.R. 1228 paras 39-56. It all depended upon the facts, and - in the case of criminals - the likelihood of them turning over a new leaf.

Limitation of Article 8

1. From 2000, the SoS had two broad theoretical approaches available, if he/she wished to limit immigrant reliance on art.8: first, through the Council of Europe (COE); and second, through the HRA 1998.

2. The COE is a multilateral international organisation, established by the 1949 Treaty of London. There are now 47 members. It comprises: a committee of ministers; a parliamentary assembly; and a secretariat in Strasbourg. The 1950 ECHR led to the ECtHR being established in 1959. Strasbourg - despite the doctrine of subsidiarity - now micro-manages nearly 50, mainly civil, justice systems.

3. The UK has been at the forefront of attempting to reform the ECtHR in recent years, but it has not sought to deal with art.8 immigration cases through the council of ministers and/or the parliamentary assembly. The problem stems from the convention as interpreted by the Strasbourg court, and there has been no serious intervention in cases by the UK on the question of immigrants and art.8.

4. The HRA 1998 is a purely UK matter, given our legal dualism. Immigration had figured in the public debate about human rights in the 2000s, but not as much as other issues such as prisoners (now resolved). The then Conservative opposition considered the idea of a UK Bill of Rights (and responsibilities). In late 2012, a coalition commission, chaired by Sir Leigh Lewis, recommended effectively repealing the HRA 1998. There was no movement in time for the 800th anniversary of Magna Carta in 2015, due largely to the human rights professionals in statutory quangos, non-governmental organisations and especially the universities adopting a defend-Strasbourg line. The latter lobby group never demonstrated that, with a UK bill of rights, art.8 would not be given effect in domestic law.

5. Faced with difficulties abroad and at home, the SoS - principally, Theresa May - tried two other circuitous routes.

Immigration rules

1. The Immigration Rules (IR) - in Statement of Changes in Immigration Rules, 23 May 1994 (HC 395) as amended - are made under: the Immigration Act 1971 (IA) ss.1(4) and 3(2). They are not, of course, primary law (despite s.86(3)(a) (now repealed) of the Nationality, Immigration and Asylum Act 2002 (NIAA) having referred to "the law (including immigration rules)"). Immigration rules are not even delegated legislation, though some judges have seemed to think so. The IA 1971 refers twice to "the practice to be followed in the administration of this Act". The IR are essentially the SoS's statements of policy. Unfortunately, they have been analysed less as public policy, and more as quasi-law requiring judicial interpretation.

2.

The SoS has written down, supposedly for her case workers, immigrant applicants, their lawyers, and the judges who have to decide cases, almost every detail, including (Appendix P) financial institutions in selected countries from which she will, or will not, accept statements. It could be argued that good administration has given way to formalism; this is what once afflicted the common law, giving rise to equity. Applications, appeals and determinations have become bogged down, as many believe was intended: arguably, adverse box-ticking has replacing the proper exercise of discretion in decision making. There is now a lengthy obstacle course, starting with the correct form, and the right fee, which has the effect (with or without the intention) of tripping up stake holders repeatedly on their way to a successful application or appeal.

3. Private and family life was provided for, through the 2000s, in Pts 7 (other categories) and 8 (family members) of the IR, in paras 246 to 319. These contained workable sets of rules. In 2008, a new Pt 6A, introduced a points-based system for economic migrants seeking to work. This became a precedent for what may be termed the new rules of 2012.

4. On 9 July 2012, more radical changes stimulated by the SoS's art.8 problem took effect: "private life", namely (paras 276ADE to 276DH), was inserted into Pt 7; Pt 8 was given new transitional provisions (paras A277 to A281), and Appendices FM and (later) FM-SE were added to the IR. The rules governing spouses, children and dependant relatives became more complicated and tougher (the long residence route, for example, of interest to illegal entrants and overstayers, was increased from 14 to 20 years). The SoS claimed: "the new Immigration Rules reflect the qualified nature of Article 8, setting requirements which correctly balance the individual right to respect for private or family life with the public interest in safeguarding the economic well-being of the UK by controlling immigration and in protecting the public from foreign criminals." (Statement of Changes in Immigration Rules, 13 June 2012 (HC 194) explanatory memorandum, para.2.1). (Foreign criminals had been dealt with originally in ss.32 - 35 of the UK Borders Act 2007). The intended effect was: all art.8 applications and appeals had to be processed through the new rules of 2012.

5. The response of tribunals and courts to these changes in the IR is considered in this article below.

Immigration Act 2014

1. Part 2 of the Immigration Act 2014 (IA), which received Royal Assent on 14 May 2014, purports to restrict immigration appeals, reversing a process begun in the 1990s (and beckoning increasing reliance on judicial review). Section 19 - inserting ss.117A to 117D into the NIAA 2002 - is entitled: "Article 8 of the ECHR: public interest considerations". The public interest is defined here exclusively in terms of the SoS's justification defence as a respondent to first appeals: s.117A(3) of the NIAA 2002. The public interest is held statutorily to comprise: effective immigration controls; ability to speak English; financial independence; little weight given to private and family life when the immigrant is in the UK unlawfully; little weight given to private life when the immigration status is precarious; and the deportation of foreign criminals, increasingly with the seriousness of offences. The SoS told parliament, when introducing the Bill, that "[it] gives the force of primary legislation to the principles reflected in th[e immigration] rules by requiring a court or tribunal, when determining whether a decision is in breach of Article 8 ECHR, to have regard to the public interest considerations as set out in the Bill". (explanatory notes, 10 October 2013, para.19)

2. A number of points may be made:

• s.19 does not touch on art.8 of the ECHR directly.

• It does not affect the operation of the HRA 1998: there is no amending, express or implied.

• As the SoS made clear, it was an attempt to achieve through statute what had been tried, and failed, through the IR two years earlier.

• s.19 bites above all on judicial discretion, when applying Strasbourg and domestic jurisprudence.

• The executive - through parliament (to which the courts readily defer) - is telling the judiciary to accept its defence of justification (effective immigration controls) in the name of the public interest.

• The senior judiciary - invoking the existing constitutional principle of the rule of law - and reading the HRA 1998 together with the IA 2014, was expected to state, with characteristic courtesy, that it may also interpret the public interest more widely, either separately in an appeal or when exercising a supervisory jurisdiction. Does the public interest not include also: proper immigration decision-making; and fair immigration appeals? Could the senior judiciary not widen the definition of public interest, to include the appellant and even the wider public? And might it not say it should have the last word on public interest, after parliament?

3. As with prisoners' voting rights (where a vote of the house of commons was deployed against Strasbourg enforcement of Hirst v United Kingdom (74025/01) (2006) 42 E.H.R.R. 41), the executive is invoking the people through their representatives, voting on a parliamentary bill, to try and influence judicial decision making, this time in a domestic context (see Appendix A in Izuazu below).

4. Section 19 was brought into force on 28 July 2014 (along with further Immigration Rules, on private and family life, in Statement of Changes in Immigration Rules, 10 July 2014 (HC 532)): Immigration Act 2014 (Commencement No. 1, Transitory and Saving Provisions) Order 2014/1820, art.3.Attempts by the SOS to apply it retrospectively, to decisions made before 28 July 2014, were brought to an end by BS (Congo) v Secretary of State for the Home Department [2015] EWCA Civ 639.

5. It is significant that s.19 - and ss.117A to 117D of the NIAA 2002 - was not seriously considered by the Court of Appeal until: NE-A (Nigeria) v Secretary of State for the Home Department [2017] EWCA Civ 239; [2017] Imm. A.R. 1077. The Court of Appeal held that ss.117A to 118D correctly articulate the law on art.8. 

Immigration Act 2016

1. This measure continues to try and squeeze in-country immigration appeals out of the system of control, but does not deal further with art.8.

Domestic Jurisprudence

1. Before looking at the treatment of the new 2012 IR in the senior courts, it is necessary to make three general points

2. First, the Immigration courts - from early 2010, the First-tier Tribunal (Immigration and Asylum Chamber) (FTT) and the Upper Tribunal (Immigration and Asylum Chamber) (UT) - were regulated significantly by the Court of Appeal (often with Sedley L.J. in the chair), on a succession of appeals.

3. Second, the House of Lords, and now the Supreme Court, did a great deal to vindicate art.8, not least with the three judgments of 25 June 2008, with Lord Bingham in the chair: Beoku-Betts v Secretary of State for the Home Department [2008] UKHL 39; [2009] 1 A.C. 115 (the art.8 rights of all family members); C (Zimbabwe) v Secretary of State for the Home Department [2008] UKHL 40; [2008] 1 W.L.R. 1420 (applications from abroad not necessary in art.8 appeals); and EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41; [2009] 1 A.C. 1159 (strengthened private and family life during decision-making delays).

4. There is a strong probability that this process is being reversed: Ali v Secretary of State for the Home Department [2016] UKSC 60 (where Lord Kerr dissented powerfully and at length, but alone, on art.8 in criminal deportation); R. (on the application of MM (Lebanon)) v Secretary of State for the Home Department [2017] UKSC 10 (on the £18,600 income rule); and R. (on the application of Agyarko) v Secretary of State for the Home Department [2017] UKSC 11 (no insurmountable obstacles to a British national accompanying a partner to his/her country of origin). The two latter judgments were handed down on 22 February 2017; was this the end of nine years of art.8 vindication by the highest court?

5. Third, there are rules of precedent, governing the use of authorities in legal argument. A widespread error is the tendency to literalism, quoting judges almost randomly. There is a hierarchy of cases, and judges are bound variously by previous decisions. Each case (if it is authority) will have a ratio decidendi - that is, the point of law it establishes, if it establishes any. Many decisions are made per incuriam : counsel might fail to refer fully to legislation, or to relevant cases; more often, a point is not adequately considered by a judge, even if he/she goes on to apparently comment.

6. The Supreme Court on 22 February 2017 may not have done for art.8 in immigration law. The 2012 immigration rules, however, have impressed the senior courts inordinately. Nevertheless, there are a number of cases which keep art.8 alive, and may still be relied upon.

7. The first case, a successful SoS appeal, nevertheless preserved art.8 against the 2012 rules: Izuazu (Article 8: New Rules: Nigeria), Re [2013] UKUT 45 (IAC). As discussed above, the SoS had sought to specify art.8 through the new Immigration Rules from 9 July 2012. Izuazu was a decision of Blake J., the first president of this chamber of the UT, dated 31 January 2013. Izuazu established a two-stage test, which was followed in the FTT and UT in 2012-14 (preserving a great deal of legal certainty): first, one looked to the new rules; and second, one then turned to art.8. The UT headnote gives a flavour of the legal argument (submissions being appended to the determination): "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. 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. 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."

8. The second case, R. (on the application of Nagre) v Secretary of State for the Home Department [2013] EWHC 720 (Admin), a decision of Sales J., was an unsuccessful judicial review challenge to the new rules, in which a declaration of incompatibility under s.4 of the HRA 1998 was sought. The application failed to appreciate the SoS's duty under IA 1971 ss.1(4) and 3(2) (and the view articulated by Blake J. in Izuazu at para.30). Sales J., however, did not seek generally to disturb this settled view of the UT. To that extent, R (Nagre) strengthened the constitutional critique, encouraging the SoS to preserve discretion outside the rules in her decision-making (so-called exceptional circumstances, supposedly from Strasbourg): "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." (para.36) However, Sales J. was more sanguine about the first stage of the two-stage test resolving the question of proportionality. The applicant - an overstaying visitor with an unmarried British partner - was susceptible to the insurmountable obstacle test (which came and went in the judgment): they could continue their family life in India, concluded Sales J., because there were no insurmountable obstacles to removal (a reason that wwas not settled legally in case law, as between the IR and art.8, until: R (Agyarko) v SoS [2016] 1 W.L.R. 390.

9. A third case is: MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192; [2014] 1 W.L.R. 544. It is carrying the burden of preserving art.8 in immigration law. This was an unsuccessful SoS appeal concerning a foreign criminal, presided over by Lord Dyson MR. The Court of Appeal characterised the new IR as a complete code (subsequently criticised), but went on - as in Izuazu and R (Nagre) - to consider art.8 under the SoS's exceptional circumstances. The court upheld the UT's finely balanced art.8 judgment. This case is notable for the SoS's counsel, Lisa Giovannetti QC's, overnight written statement of the law, which began: "The new rules do not seek to change the law." (para.34) The case is also of interest for a per incuriam in October 2013, querying the "insurmountable obstacles" test in deportation cases (paras 47 to 49).

10. A review of recent Court of Appeal cases reveals a growing consistency in the dismissal of art.8 appeals. See, for example:

• Aziz v Secretary of State for the Home Department [2018] EWCA Civ 1884.

• SL (St. Lucia) v Secretary of State for the Home Department [2018] EWCA Civ 1894.

• TZ (Pakistan) v Secretary of State for the Home Department [2018] EWCA Civ 1109.

Prospects

1. Immigration practitioners, seeking to do their best for their clients, will want to consider taking the following points, where relevant to their appeals against SoS refusal decisions:

a. art.8 remains legally alive, under the 1950 ECHR and the HRA 1998, with Strasbourg cases still influencing domestic jurisprudence;

b. solicitors and barristers should be alert to the SoS seeking to foreground the 2012 (and 2014) IR and, now, s.19 of the IA 2014;

c. jurisprudential battles remain to be fought, in the Court of Appeal and Supreme Court. MF (Nigeria), with the Master of the Rolls remains highly arguable. Lord Kerr's dissent in Ali's case should be visited, on criminal deportation. R(MM) got almost nowhere, except on guidance. R (Agyarko) surely does not mean that "no insurmountable obstacles" in the immigration rules also applies to art.8;

d. immigration judges, on the front line, are likely to remain amenable to submissions based on "pure" art.8, however case workers on both sides have presented the issues; and

e. the subjective nature of European proportionality balancing exercises, involving extensive factual analysis, remains strangely unfamiliar to common lawyers; they seem to prefer the literalism of lengthy Immigration Rules, surveyed in wordy determinations in the tribunals and ex tempore judgements in the Court of Appeal.

Key Acts

Immigration Act 1971

Human Rights Act 1998

Nationality, Immigration and Asylum Act 2002

UK Borders Act 2007

Immigration Act 2014

Key Subordinate Legislation

Immigration Act 2014 (Commencement No. 1, Transitory and Saving Provisions) Order 2014/1820

Key Quasi-legislation

Statement of Changes in Immigration Rules, 23 May 1994 (HC 395)

Statement of Changes in Immigration Rules, 30 March 2006 (HC 1016)

Statement of Changes in Immigration Rules, 13 June 2012 (HC 194)

Statement of Changes in Immigration Rules, 5 September 2012 (HC 565)

Statement of Changes in Immigration Rules, 10 July 2014 (HC 532)

Immigration Rules

Immigration Rules Pt 7

Immigration Rules Pt 8

Immigration Rules - Appendix FM

Immigration Rules - Appendix FM-SE

Key European Union Legislation

European Convention on Human Rights

Key Cases

R. (on the application of Razgar) v Secretary of State for the Home Department (No.2) [2004] UKHL 27; [2004] 2 A.C. 368

Huang v Secretary of State for the Home Department [2007] UKHL 11; [2007] 2 A.C. 167

Abdulaziz v United Kingdom (A/94) (1985) 7 E.H.R.R. 471

Beldjoudi v France (A/234-A) (1992) 14 E.H.R.R. 801

Boultif v Switzerland (54273/00) [2001] 2 F.L.R. 1228

Hirst v United Kingdom (74025/01) (2006) 42 E.H.R.R. 41

AK (Pakistan) v Secretary of State for the Home Department [2014] EWCA Civ 1642

YM (Uganda) v Secretary of State for the Home Department [2014] EWCA Civ 1292

Beoku-Betts v Secretary of State for the Home Department [2008] UKHL 39; [2009] 1 A.C. 115

C (Zimbabwe) v Secretary of State for the Home Department [2008] UKHL 40; [2008] 1 W.L.R. 1420

EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41; [2009] 1 A.C. 1159

Izuazu (Article 8: New Rules: Nigeria), Re [2013] UKUT 45 (IAC)

R. (on the application of Nagre) v Secretary of State for the Home Department [2013] EWHC 720 (Admin)

MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192; [2014] 1 W.L.R. 544

R. (on the application of MM (Lebanon)) v Secretary of State for the Home Department [2014] EWCA Civ 985; [2015] 1 W.L.R. 1073

Edgehill v Secretary of State for the Home Department [2014] EWCA Civ 402; [2014] Imm. A.R. 883

Odelola v Secretary of State for the Home Department [2009] UKHL 25; [2009] 1 W.L.R. 1230

Singh v Secretary of State for the Home Department [2015] EWCA Civ 74

BS (Congo) v Secretary of State for the Home Department [2015] EWCA Civ 639

R. (on the application of Ali) v Secretary of State for the Home Department [2015] UKSC 68

Ali v Secretary of State for the Home Department [2016] UKSC 60

R. (on the application of MM (Lebanon)) v Secretary of State for the Home Department [2014] EWCA Civ 985; [2015] 1 W.L.R. 1073

R. (on the application of Agyarko) v Secretary of State for the Home Department [2017] UKSC 11

Aziz v Secretary of State for the Home Department [2018] EWCA Civ 1884.

SL (St. Lucia) v Secretary of State for the Home Department [2018] EWCA Civ 1894

TZ (Pakistan) v Secretary of State for the Home Department [2018] EWCA Civ 1109

Key Texts

None.

Further Reading

None.

© 2018 Sweet & Maxwell Ltd