Human Rights in Family Immigration Cases
In immigration law, the most frequent use of the ECHR is in the context of asylum, and in family settlement. For asylum, it is usually said that human rights claims ‘stand or fall’ with the asylum claim, because they turn on the same facts, unless they are concerned with medical treatment under Article 3.
In family immigration cases, the ECHR is often mentioned instead of the Immigration Rules, but it would be a mistake to do so as applying the Rules is the first stage of the process. If an appeal fails under the Rules existing case law should be applied as it is wider than the Rules. This was emphasised in the Court of Appeal case MM (Lebanon)  EWCA Civ 985. This confirmed that the minimum income threshold in Appendix FM of the Rules was lawful. The Rules had to be strictly adhered to, including Appendix FM-SE on documentary requirements. There was little room for discretion. However, if the Rules were not a “complete code”, the Article 8 proportionality test was guided by case law, particularly Huang v SSHD  UKHL 11. The ECHR is incorporated into UK law by the Human Rights Act 1998, and the principles of its effect come from that Act.
Under Section 3 of the 1998 Act, UK Acts and Rules must be interpreted in a way that is compatible with the ECHR guarantees, and this is done by requiring Courts (and this includes the Tribunal (Immigration and Asylum Chamber)) to take account of Strasbourg Case Law (HRA 1998, Section 2) when they are making decisions, though it is not directly applicable as precedent as are UK higher Court judgements. As section 2 of the HRA 1998 states, courts and tribunals must take into account any judgments or opinions of the European Court of Human Rights. It is also unlawful for a public authority to act in a way which is incompatible with a Convention right, and that includes courts, tribunals and other public bodies such as a local authority.
The Articles of the Convention are set out in very broad terms, and the effect they have in individual cases depends on how they have been interpreted by UK Case Law. The Immigration Rules are however intended to reflect the Convention’s requirements.
The Immigration Rules contain limited discretionary areas, but the SSHD always has a discretion to grant leave outside the Rules. That is based in UK law rather than being required by the Convention. However, in family cases, the refusal will usually address Article 8 issues even if they have not been specifically raised in the application. It is relatively rare for an application to be granted under the Human Rights Convention as the SSHD and Entry Clearance Officers take the view that the Immigration Rules cover all eventualities. Indeed on 9 July 2012 the Rules were amended to make specific reference to Article 8 issues.
The Upper Tribunal has held in a number of cases that the restriction of Article 8 rights is incompatible with the Human Rights Act 1998 although the Rules had to be considered first as they had Parliamentary approval. Cases in the Court of Appeal have confirmed this but the SSHD is continuing to insist that an Article 8 assessment is of very limited weight.
An example of where the Human Rights Convention influenced a previous change in the Immigration Rules is para 246 from October 2002 enabling a parent to obtain leave to enter the UK to exercise access rights to a child resident in the UK, where the applicant has a Contact Order granted by a UK court or similar evidence, and the applicant intends to continue taking an active role in the child’s upbringing. This in turn has been embodied in Appendix FM sections EC-PT to D-ILRPT.
- In immigration law, the most frequent use of the ECHR is in the context of asylum, and in family settlement. The ECHR is incorporated into UK law by the Human Rights Act 1998, and the principles of its effect come from that Act.
- UK Acts and Rules must be interpreted in a way that is compatible with the ECHR guarantees. This is done by requiring Courts to take account of Strasbourg Case Law when they are making decisions.
- The Immigration Rules on family issues must be applied first – only if they are not a “complete code” should an Article 8 assessment take place.
- An Article 8 claim should consider the five steps: Will the decision interfere with the right to respect for family or private life; will the interference engage Art. 8; is the interference in accordance with the law; is the interference necessary in relation to Art. 8 (2); and is the interference proportionate to the legitimate public aim?
- In an Article 8 assessment the “public interest” considerations in section 19 of the Immigration Act 2014 must be taken into account.
- Article 12 – the right to marry and found a family, and Article 14 which prohibits discrimination can also be relevant in family settlement cases.
The relevant Article of the ECHR in family life cases will of course be Article 8, but Articles 12 and 14 may also be helpful. Article 12 is on the right to marry and Article 14 is on the enjoyment of human rights without any discrimination. All are qualified rights, apart from Article 8 and there would usually need to be a flagrant breach of the right to lead to success as a freestanding claim
Article 8 of the Human Rights Convention states:
- Everyone has the right to respect for his private and family life, his home and his correspondence.
- 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.
Article 8 does not give an automatic right to residency in the UK even if an applicant has strong family ties. It is a restricted right which recognizes the general right of the state to use immigration law to control the admission of non-nationals. A balance therefore has to be struck between the family life of the appellant and UK immigration law. This is what the SSHD intended to do with weight placed firmly on the public interest in the changes to the Immigration Rules introduced on 9 July 2012. Section GEN of Appendix FM sets out what the SSHD considers appropriate as Article 8 factors for settlement, although section EX sets out the conditions for a parent remaining in the UK where his/her child has lived in the UK for 7 years continuously; and para 276ADE covers the conditions for a successful private life claim under the Rules.
These Rules as amended must be applied first to see if a claim or appeal will be successful thereunder, before considering any wider case law.
The Upper Tribunal held in MF  UKUT 393 (IAC) that if an appeal will fail under the Rules, it must then be considered under the wider case law pre-existing the changes. Because of this guidance this important case law is set out as follows.
The case of R v SSHD (ex parte Razgar)  UKHL27 set down a five step or question test for the application of Art. 8:
- Will the proposed removal be an interference by a public authority with the exercise of the applicant’s right to respect for his family or private life?
- If so, will such interference have consequences of such gravity as potentially to engage the operation of Art. 8?
- If so, is such interference in accordance with the law?
- If so, is such interference necessary in a democratic society in the interests of national security etc (as set out in Art. 8 (2))?
- If so, is such interference proportionate to the legitimate public end sought to be achieved?
Razgar also held that the answer to question 4 was usually positive because Strasbourg jurisprudence recognized that states had the right to regulate the entry and expulsion of non-nationals, and to have a firm immigration policy. The crucial question 5 was to strike ‘a fair balance between the rights of the individual and the interests of the community which is inherent in the whole of the Convention.’
What is Family Life?
The Strasbourg jurisdiction makes clear that the existence of family life between spouses and between parents and minor children is taken for granted. The Immigration Rules make provision for family reunion in these cases. Whether there is family life within more remote relationships, including that of unmarried partners, or between other adults depends on the facts of each case including special dependency requirements.
In EB (Kosovo) v SSHD  UKHL 41 it was held that ‘it will rarely be proportionate to uphold an order for removal of a spouse if there is a close and genuine bond with the other spouse and that spouse cannot reasonably be expected to follow the removed spouse to a country of removal, or if the effect of the order is to sever a genuine and subsisting relationship between parent and child.’
There is some recognition of this in the Immigration Rules which of course have to be applied first. Section EX.1. of Appendix FM makes an exception to the eligibility factors normally applying to a partner or parent (for example having made a valid application as a partner or parent, or having existing non-visitor leave) if the applicant has a genuine and subsisting relationship
- with a partner in the UK who is a British citizen, settled, or as a refugee, and there are “insurmountable obstacles” (i.e. very significant difficulties which could not be overcome without serious hardship) to family life continuing outside the UK
- with a child in the UK who is a British citizen or who has lived in the UK for at least 7 years continuously prior to the application and “it would not be reasonable to expect the child to leave the UK”.
The Immigration Act 2014
As part of the SSHD’s continued efforts to restrict the interpretation of Article 8 outside the Immigration Rules. section 19 of the Act introduces “public interest” considerations which must be taken into account.
The “public interest” consideration in an Article 8 assessment of the applicant’s relationship with a British citizen or settled person (no reference to refugee as in section EX.1.of Appendix FM) is that “little weight” should be attached to it if it was formed while the applicant was in the UK unlawfully.
By contrast, the public interest does not demand the removal of someone with a genuine and subsisting parental relationship with a child who has lived in the UK continuously for at least 7 years. There are stricter rules for deportation cases, especially if a foreign criminal has been sentenced to 4 years or more.
Relationships between parents and adult children are not generally considered to be covered by the ‘family life’ definition for Art. 8, unless there is some element of dependency over and above the normal emotional ties: Kugathas v SSHD  INLR 170. However, in ZB v SSHD  EWCA Civ 834 the Court of Appeal held that account must be taken of the parents’ need for the children, and the totality of the family relationships. The parents in question were elderly and dependent for many needs on their children in the UK.
Interference and Proportionality
Although the second step in the Razgar test mentioned the “gravity” of the consequences of interference in family life, the Court of Appeal in AG v SSHD  EWCA Civ 801 stated that the threshold to be crossed was not high. It also stated in KR v SSHD  EWCA Civ 514 that the threshold was not an “exceptionally grave interference” but that the words of Art. 8 should be taken at face value, so that the important question was whether the interference was justified, once it had been established that it had occurred.
In Huang v SSHD  UKHL 11 the House of Lords in confirming the Razgar approach held that once Art. 8 was engaged, the crucial question was whether the interference was proportionate to the legitimate aim sought to be achieved. The test was if family life could not reasonably be expected to be enjoyed elsewhere, whether the refusal prejudiced family life sufficiently seriously to amount to a breach of the fundamental right protected by Art. 8. Again as from 28 July 2014 an Article 8 assessment on proportionality must take into account the “public interest” considerations in section 19 of the Immigration Act 2014.
The proportionality stage of the Razgar test is crucial, but difficult to apply. The case of Huang pointed out that the test had originally been misunderstood so that Art. 8 was considered to be applicable in only a tiny minority of exceptional cases. Huang was then misunderstood to mean that the question of whether family life could be enjoyed elsewhere was part of the second step on interference, when it should be part of the proportionality step. Decision-makers also started to use the concept of ‘insurmountable obstacles’ to family life being enjoyed elsewhere as the relevant test. However, in VW v SSHD  EWCA Civ 5 the Court of Appeal restated that the test in assessing proportionality and whether an applicant’s family could be expected to relocate to the country of origin to enjoy family life there, was not whether there were any ‘insurmountable obstacles’ to that but whether it was reasonable to expect them to accompany an applicant. It should be noted that this test has been re-introduced in the amended Immigration Rules in section EX.1. of Appendix FM and that it is more stringent than the test in Article 8 case law.
To counteract the less stringent test in an Article 8 proportionality assessment based on case law, The SSHD introduced the “public interest” considerations in section 19 of the Immigration Act 2014 from 28 July 2014.
Proportionality can be affected by extreme delay in Home Office processing an application.
In EB v SSHD  UKHL 41 the House of Lords said that delay could be relevant in enabling an applicant to develop much deeper emotional ties; in diminishing the weight to be attached to the applicant’s and partner’s knowledge that they started their relationship when the former’s immigration status was precarious; and in the balance to be struck against fair immigration control. But where delay is relied on, a distinction should be made between those who had a right to be in the UK and those who had not. An applicant subject to delay is also supposed to show evidence that they have chased up a decision as far as possible, by e.g. involving their MP.
The immigration history of applicants is relevant to striking a balance between individual rights and the public interest. Under section 19 of the Immigration Act 2014 “little weight” can be attached to relationship with a partner, even a British citizen or settled person, if it was formed when the applicant was in the UK unlawfully.
An Exceptional Case
Chikwamba v SSHD  UKHL 40 is often quoted for two reasons:
- The relevance of very poor conditions in the country of return
- Not requiring an applicant to return to their home country to make an entry clearance application which would most likely be successful
That case concerned a Zimbabwean appellant who married a refugee who could not return there. No-one doubted that in the long run the family would be reunited in the UK because of their particular circumstances, so it was asked if it was essential in order to maintain effective immigration control that the appellant and the child must first travel back to Zimbabwe. It was a country to which the return of failed asylum seekers had been suspended, and where conditions were very harsh.
However, Chikwamba has limited real value as in SZ v SSHD  EWCA Civ 590 the Court of Appeal considered that it was fact-specific and an example of a really obvious Art. 8 situation. The appellant’s spouse was a refugee, and there was a small child involved who would have to return with her mother to the awful conditions of Zimbabwe. It was also clear that the mother’s application for entry clearance would be successful so she was being forced into a pointless manoeuvre.
Para 276ADE(1) covers private life within the Immigration Rules and apart from children who have been in the UK continuously for at least 7 years (para276ADE(1)(vi) it has been successively made more stringent for adult applicants. It is much more difficult to succeed in an Art. 8 claim based on private life than on family life. It has a much broader definition than family life, and according to Bensaid v SSHD  33 EHRR 10 it is not susceptible to exhaustive definition but includes the right to personal development.
It has been established for a number of years that social and work contacts acquired whilst being in the UK legally can amount to private life, but mere presence in the UK may not be sufficient. The Razgar five-step test still has to be applied, and again, the crucial step is that of proportionality. As with an Article 8 assessment of family life, under section 19 of the Immigration Act 2014 “little weight” can be attached to private life formed when the applicant was in the UK unlawfully or with “precarious” immigration status.
There were a number of cases in which students in the UK claimed breach of their right to respect for private life when a decision to refuse or curtail leave meant that they had to abandon their studies. Although it was arguable where a student could not take a similar course in their home country, a combination of the Tier 4 rules and section 19 of the IA Act 2014 make a student private life claim unlikely to succeed. A student should also know that there is no expectation of remaining in the UK unless there is compliance with the Immigration Rules.
Other relevant Articles of the ECHR
Article 12 of the ECHR asserts the right to marry and found a family – was argued in the case of Baiai challenging the Home Office’s permission to marry (Certificate of Approval) scheme. There have been few challenges on this basis upheld by Strasbourg, although the House of Lords upheld the argument in Baiai v SSHD (UKHL53, 2008) that the Certificate of Approval scheme was incompatible with the Article 12 ECHR right to marry.
Following this, the Home Office stopped requiring a fee for a certificate of approval and it has now been abolished. Since it will usually be possible to go through a marriage overseas, or apply for entry clearance from abroad as a fiancé(e), there will be few circumstances where such a high test can be made out.
So, in a case where it could be shown that there was an interference with family life, Article 8 would be the other relevant Article involved although also a qualified right. These are, again, difficult cases to argue as a combination of the Immigration Rules and Art. 8 should cover most eventualities. The case of MM (Lebanon) v SSHD  EWCA Civ 985 noted that the SSHD accepted that the financial threshold in Appendix FM was indirectly discriminatory under Article 14. However , the Court of Appeal agreed with the Upper Tribunal (IAC) that it was justified as in making immigration law, a line had to be drawn at some point.
Posted on: 28th March 2016, by : ICS Legal