How do Convention rights apply in immigration cases?
Under the Human Rights Act section 6, public authorities must not act in breach of a person’s Convention rights. In immigration matters, ‘public authorities’ includes entry clearance officers (to a certain extent), immigration officers and Home Office officials.
Under Article 8 European Convention on Human rights, a person has the right to a private and family life. A breach of an individual’s human rights is a valid ground of appeal under section 84 of the Nationality, Immigration & Asylum Act 2002.
What happens to the claimant pending an appeal?
The Home Office now has power under section 63 of the Immigration Act 2016 to remove someone who pursues a human rights appeal, even while their appeal on human rights grounds is pending. The potential impact on their family life, work, and financial situation is clear: they may have to leave their family to return to their country of origin, give up their work – and face the prospect of either never returning, or coming back to the UK to have to secure work once again.
What do immigration judges consider in human rights cases?
In a human rights immigration appeal, the court will consider whether or not an immigration decision was lawful. It will look at whether the Home Office acted in accordance with the relevant qualifying criteria (usually it does), and then decide whether the measures taken were ‘proportionate’.
The qualifying criteria is weighed against public interest issues, for instance, the right of the appellant to family life in the UKversus the need for the prevention of crime, and the need for effective UK immigration control.
On the proportionality issue, the court will consider the case law, as well assection 117B(5) of the Nationality Immigration and Asylum Act 2002 which says that in making a proportionality assessment, ‘little weight should be given to a private life established by a person at a time when their immigration status is precarious’.
If the appeal is successful on human rights grounds, the appellant will usually be granted discretionary leave to remain.
What is the jurisdiction of immigration appeal tribunals in human rights cases?
If the Tribunal considers a ‘new matter’ without the Secretary of State giving consent for it to do so, it is acting outside its jurisdiction. Whether or not a human rights issue raised in an appeal is a ‘new matter’ will be a factual issue in any given case.
However, it seems that where a human rights issue is properly pleaded in an appeal, the First Tier Tribunal (FTT) does have jurisdiction to hear an appeal on human rights grounds (otherwise, it is invalid).
In a recent case, the FTT had no jurisdiction – but the judge said that even if there had been any such jurisdiction, there was no material before the FTT concerning any factual basis for any analysis to take place – the appellant had provided no documentation other than that in support of his application for a residence card, and had since provided no documentary evidence of his circumstances.