The 2014 Immigration Act appeared to abolish the in country rights of appeal against Immigration decisions. We have got them back. Here is how:
A summary of the competing legal principles familiar to practitioners, may be helpful.
The Immigration Rules set out the criteria on which the Secretary of State is going to give a person permission to stay in the United Kingdom. As such they are a statement of public policy with legally enforceable rights.
Article 8 of the European Convention of Human Rights, sets out the right to a private and family life. This is a qualified right as it may be subject to state interference, so long as the intervention is proportionate and for a legitimate end:
“ there shall be no interference by a public authority with the exercise of this right as 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 public health or morals, or for the protection of the rights and freedom of others.”
In deciding whether a decision on an Immigration matter breaches a persons right to a private and family life, a Tribunal must ask itself five questions:
(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 accordance 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 or morals, or for the protection of the rights and freedoms of others?
(5) If so, is such interference proportionate to the legitimate public end sought to be achieved?
The 2014 Immigration Act.
The 2014 Immigration Act abolished the in country rights of appeal against adverse decisions on applications made under the Immigration Rules.
The Immigration Act preserved the right of appeal when some one made a Human Rights claim.
A reading of the discussions at committee during the passage of the Immigration Bill , do not reveal any consideration to the Human rights of those whose claims were based under the Immigration Rules. Under the same Act, Parliament took care to identify the appropriate weight that should be given to an individual’s private life, specifying that in most instances “ little weight” should be so accorded.
In summary it is a statutory scheme that appeared at first blush to abolish scrutiny of whether the government was following its own rules and to load the human rights appeals in its own favour.
The appeal of T H L v Secretary of State for the Home Department.
In making a renewed application for a Tier One Entrepreneur, our client asserted that through his previous lawful presence in the United Kingdom and the establishment of his business he had acquired a private life. That any removal would be a disproportionate interference with that right as he met the Immigration Rules.
The Upper Tribunal concluded that : -
• Our client did have a private life in the United Kingdom given his lawful presence since 2010.
• That the application had been properly made in the first instance and met the Immigration Rules.
• As a result only nominal weight should be given to the public interest in removal, given that the applicant met the stated public policy of the Immigration Rules.
As the government has enshrined in statute, that little weight must be given to a person's private life, and little weight is greater than nominal weight, then those in country applications that meet the requirements of the Immigration Rules, must be allowed on appeal where a Human Rights application has been made. As this case has not been reported, permission to rely on it will have in the first instance to be obtained from the Upper Tribunal.
That migrants seeking an extension of leave under the Immigration Rules would also be relying on the Human Rights Act , is so self evident, then perhaps it was Parliament’s intention all along.
It does beg the question what type of permission the successful appellant will be given. Will it be leave in line with the Immigration Rules, or under Article 8 ? If under Article 8 what will he need to show on renewal ? Compliance with the policy under the private and family life provisions or compliance with the specific requirements of the Immigration Rules on which the original application was made ?