Immigration Bill 2026 – Changes to Private and Family Life Protections.

Article 8 of the European Convention of Human Rights protects the right to Private and Family life whereby the rights of migrants to stay are balanced against the maintenance of an effective Immigration control. In the Immigration Act 2014, the Government at Sections 117 sought to define how Judges were to weigh up the competing interests of individual and state. Clauses 18 to 19 of the Immigration and Asylum Bill 2026 sets out to re define how the private and family protections under the European Convention of Human Rights are to be interpreted.

The changes are best seen through a comparison between old and new sections. The current statute states: -

(4)Little weight should be given to—
(a)a private life, or
(b)a relationship formed with a qualifying partner,
that is established by a person at a time when the person is in the United Kingdom unlawfully.

This now becomes: -

(4) No weight should be given to a private or family life established by a person at a time when the person is in the United Kingdom and—

(a) they require leave to enter or remain in the United Kingdom but do not have it or obtained it by deception,
or
(b) they are in serious breach of a condition attached to their leave to enter or remain.

The first amendment is to shift from “ little weight” being given to a relationship to “no weight” at all. The second is the disregard to individuals is to be extended to families. To deny a relationship any form of value , is to deny the existence of that very integrity that the right to private and family life enshrined under Article 8 is intended to protect.

The current Section 117 (B) (6) sets out where the public interest in removal does not apply.

( 6 )In the case of a person who is not liable to deportation, the public interest does not require the person's removal where—

(a)the person has a genuine and subsisting parental relationship with a qualifying child, and
(b)it would not be reasonable to expect the child to leave the United Kingdom.

A qualifying child is either a British Citizen, or a child who has resided in the United Kingdom for seven years.

Under the new Bill this protection now reads as

( 6 )In the case of a person who is not liable to deportation, the public interest does not require the person's removal where—
(a) the person has a genuine and subsisting parental relationship with a qualifying child,
(b) it would not be reasonable to expect the child to leave the United Kingdom.
And
(c) if the person were to be removed and the child were to remain in the United Kingdom, that would have a very significant and long-lasting adverse effect on the child.

The addition of subsection ( c ) is perplexing. This test applies where the child is a British Citizen or one who has resided in the UK for seven years or more. It substitutes a high speculative evidential burden for instinctive decency.

Baldly stated deporting the mother or father, would self evidently, have a very significant and long lasting adverse effect on the child. But, the Rules of the Tribunal are that the appellant is to prove it. So consider how this evidence might be canvassed. It will have to take into consideration what the child’s view may be, which would mean asking them, and so in asking , cause them that very distress that will engender long term adverse effects.

And imagine what harm would be done to the child where the child’s view was not enough to sway the Judge. The responsibility that child might feel because his or her view, was not enough to save their mum or dad.

There is a new Section 117 ( D) (7) that seeks to limit the exact circumstances where it would not be reasonable to expect a child to leave the United Kingdom.

(7) For the purposes of subsection (6)(b), it would not be reasonable to expect a child to leave the United Kingdom if (and only if) one or more of the following conditions are met—

(a) the child would not receive any education in the country to which the child is proposed to be relocated (the “new country”);
(b) there would be very significant obstacles to the child’s ability to adapt to or integrate into the new country;
(c) the child’s relocation to the new country would otherwise have a very significant and long-lasting adverse effect on the child.

British Citizen children have a right of abode. The current bill diminishes this right by requiring them to prove long lasting adverse effects to render their departure unreasonable.

About

Dominic Magne has worked in the field of Immigration Asylum and Nationality Law since 1992. He qualified as a barrister in 1997 and as a solicitor in 2001.

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