How do Convention rights apply in immigration cases?
The Human Rights Act section 6 says that public authorities must not act in breach of a person’s Convention rights. In immigration matters, the umbrella of ‘public authorities’ covers entry clearance officers (to a certain extent), immigration officers and officials in the Home Office. A breach of this obligation is one of the valid grounds of appeal under section 84 of the Nationality, Immigration & Asylum Act 2002.
Do Immigration Judges have discretion in these human rights cases?
The case of AG and others (Kosovo) 2007 suggests not: the determination in this case found that a human rights appeal is not an exercise in discretion for the Immigration Judge but that the judgement should be limited to whether or not an immigration decision was lawful. If it were an exercise in discretion, the determination would in some cases be required to be returned to the Secretary of State for further consideration. Yet the fact that it is not means that (on the basis that the Immigration Judge’s determination is not itself appealed by the Home Office) the judgement of the tribunal must be implemented. In other words, if the appeal is dismissed under the rules but succeeds on human rights grounds then the appellant will be granted suitable entry clearance or leave.
When dealing with human rights law and the European Court of Human Rights, the tribunal weighs up the qualified rights of the appellant with public interests i.e. the right of a detained appellant to family life in the U.K. versus the need for the prevention of crime. Another such countervailing public interest cited by Home Office Presenting Officers is the need for effective immigration control, further politicising the task of the tribunal. Appeal bodies now evaluate the impact of social policy upon an individual and the proportionality of removal in relation to their human rights.
What is the jurisdiction of appeal bodies in human rights cases?
From the implementation of the Human Rights Act, some case law (judicial review cases right up to Court of Appeal) has pointed to the Immigration & Asylum Chamber having no jurisdiction, in immigration human rights appeals, to substitute its judgement for that of the Secretary of State. The exception was if the original decision of the Secretary of State (i.e. all Home Office officials, immigration officers and entry clearance officers acting on their behalf) was irrational. The reasoning behind this was that the Secretary of State had been appointed as the principal decision-maker for immigration.
However, other instances of case law have suggested that under section 6 of the Human Rights Act, the Immigration & Asylum Chamber has a duty to examine whether or not the original decision was lawful or not. This is a matter of law; it following that the tribunal is bound to consider the merits of the case itself. Both these opposing arguments have been continued to be put forward as ‘case law’ but no judicial authority was made on the matter until 2007.
The case of Huang and Kashmiri (2007) demonstrates two appellants who fell outside the immigration rules for various reasons and whose only ground of appeal was that it would be a breach of their respective Article 8 rights to family life if they were returned. Mrs Huang had a daughter, son-in-law and grandchild in the U.K. Mr Kashmiri had a father, father’s wife and his father’s younger sons in the U.K.
The House of Lords displaced any earlier authorities with this statement on the question on the jurisdiction of appeal bodies in paragraph 11 of its determination:
‘the task of the appellate immigration authority (now Immigration & Asylum Chamber), on an appeal on a Convention ground against a decision of the primary official decision-maker refusing leave to enter or remain in this country, is to decide whether the challenged decision is unlawful as incompatible with a Convention right or compatible and so lawful.
It is not a secondary, reviewing, function dependent on establishing that the primary decision-maker misdirected himself or acted irrationally or was guilty of procedural impropriety. The appellate immigration authority (now IAC) must decide for itself whether the impugned decision is lawful and, if not, but only if not, reverse it.