text stringlengths 5 5.67k |
|---|
In paragraph 1.4: Safeguarding and promoting the welfare of children is defined as: preventing impairment of childrens health or development (where health means physical or mental health and development means physical, intellectual, emotional, social or behavioural development); ensuring that children are growing up in... |
Additionally, although section 55 only applies to children in the United Kingdom, the guidance states that UK Border Agency staff working overseas must adhere to the spirit of the duty and make inquiries when they have reason to suspect that a child may be in need of protection or safeguarding, or presents welfare need... |
As already seen, Appendix FM itself purports, in para GEN.1.1, to reflect both the article 8 rights of the parties and the Secretary of States duty under section 55. Ratio |
The Explanatory Memorandum laid before Parliament states that the purpose of the new rules was to set requirements which correctly balance the individuals right to respect for private and family life with the public interest in safeguarding the economic well-being of the UK by controlling immigration (para 2.1); furthe... |
Immigration Rules and policy STA |
The legal and policy background of the immigration rules has been discussed in detail by Lord Reed in Hesham Ali and Agyarko. STA |
As he explains, the statutory basis for the modern system of immigration control starts from the Immigration Act 1971. STA |
Section 1(4) gives authority to the Secretary of State to make rules as to the practice to be followed in the administration of the Act for regulating the entry and stay of persons not having the right of abode. STA |
Section 3(2) makes detailed provision for statements of the rules, or changes, to be laid before Parliament. STA |
The 1971 Act has been described as a constitutional landmark. Ratio |
It is the modern embodiment of the powers previously exercised under the Royal prerogative, and now entrusted to the Secretary of State, who has constitutional responsibility under Parliament for immigration control and policy. Ratio |
The rules are to be seen as statements by the Secretary of State as to how she proposes to control immigration, the scope of that duty being defined by the statute (see R (Alvi) v Secretary of State for the Home Department [2012] UKSC 33; [2012] 1 WLR 2208 paras 31, 33 per Lord Hope). Ratio |
By the HRA section 6 the Secretary of State is bound to exercise her powers under the Act in a way which is compatible with the European Convention on Human Rights. STA |
Although some reliance has been placed upon article 12 - the right to marry and found a family - and on article 14 - enjoyment of the Convention rights without discrimination on status grounds - the principal focus in these cases has been on article 8 - the right to respect for private and family life. STA |
Challenging the rules under article 8 Ratio |
In this case (unlike Hesham Ali or Agyarko) we are asked to consider the legality of the rules as such, rather than simply their application to individual cases. Ratio |
In both situations, however, it is legitimate to follow the familiar four-stage test adopted in Quila, above, and in Bibi, above. Ratio |
Immigration rules made for legitimate objectives were held disproportionate and therefore unlawful in R (Baiai) v Secretary of State for the Home Department [2008] UKHL 53; [2009] AC 287; and in effect (although the challenge was to two individual decisions) in Quila, above. PRE |
The former required a person subject to immigration control to obtain a prior certificate of approval to enter a marriage otherwise than in accordance with the rites of the Church of England. PRE |
The latter sought to deter forced marriages, by requiring both parties to a marriage to be aged 18 (later 21). PRE |
The latter was seen as a very strong case. PRE |
As Lord Wilson observed the number of unforced marriages which [the scheme] obstructs vastly exceeds the number of forced marriages which it deters, an issue which the Secretary of State had failed to address: On any view it is a sledge-hammer but she has not attempted to identify the size of the nut. PRE |
At all events she fails to establish that the interference with the rights of the claimants under article 8 is justified. PRE |
(Quila para 58) PRE |
In the same case (paras 78-79) Lady Hale summarised the reasons for holding both schemes unlawful, noting in particular the blanket character of the prohibition in each case (a factor also emphasised by the Strasbourg court in respect of the first scheme: ODonoghue v United Kingdom (2011) 53 EHRR 1, para 89). PRE |
In Bibi the court declined to hold unlawful amendments to the rules requiring a foreign spouse or partner of a British citizen or a person settled in this country to pass a test of competence in the English language before coming to live here. PRE |
The court upheld the rules as a whole as satisfying the requirements of proportionality under article 8, while (with differing degrees of emphasis) expressing concern about the potential operation of the guidance in individual cases. PRE |
In the leading judgment Lady Hale commented on the difficulties of challenges to the rules as such: It may well be possible to show that the application of the rule in an individual case is incompatible with the Convention rights of a British partner It is much harder to show that the rule itself is inevitably unlawful... |
As those cases show, rules prepared by the Secretary of State will rarely fail to satisfy the first two tests, which closely resemble conventional Wednesbury principles (see per Laws LJ, SS (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 550; [2014] 1 WLR 998, para 39), while the third and fourth... |
In practice the main emphasis is likely to be on the fourth test: do the measures strike a fair balance between the rights of the individual and the interests of the community? Nor is it enough that the rule may lead to infringements of that principle in individual cases. Ratio |
As Lord Hodge said (Bibi, para 69, approving the approach of Aikens LJ in the present case: [2015] 1 WLR 1078, paras 133-134): The court would not be entitled to strike down the rule unless satisfied that it was incapable of being operated in a proportionate way and so was inherently unjustified in all or nearly all ca... |
That observation reflects the fact that, as a general rule, it is the decision in an individual case which may be incompatible with the Convention rights, rather than the relevant general rules or policies. Ratio |
That applies also to the Secretary of States duty under section 6 of the Human Rights Act 1998 not to act in a way which is incompatible with a Convention right. Ratio |
Compliance in an individual case does not necessarily depend on the rules. Ratio |
As Laws LJ has said (Mahad (Ethiopia) v Secretary of State for the Home Department [2008] EWCA Civ 1082; [2009] Imm AR 254, para 39, agreed by Pill and Carnwath LJJ): The immigrants article 8 rights will (must be) protected by the Secretary of State and the court whether or not that is done through the medium of the im... |
It follows that the rules are not of themselves required to guarantee compliance with the article. Ratio |
There would no doubt be a breach of that duty if the rules were to be couched in a form which made non-compliance in individual cases practically inevitable. Ratio |
But that is not the position in the present context. Ratio |
Even features which make compliance more difficult, in particular the insistence that Entry Clearance Officers cannot themselves take decisions outside the rules but must refer them to the RCU in London, are not the product of the rules but of the administrative arrangements. Ratio |
As already explained (para 19 above), the general provisions of the rules envisage a two-stage process, the second involving consideration of the human rights issues outside the rules (appendix FM GEN.1.1 and GEN.1.10-11). Ratio |
Unsurprisingly, therefore, Miss Giovannetti for the Secretary of State accepts in her printed case (para 38) that failure to meet the MIR does not in itself lead to an application for entry clearance being refused, since (in her words): The Secretary of State retains a discretion to grant entry clearance outside the ru... |
Consistently with that approach, when dealing with the appeal in SS (Congo) (para 256), she accepts as uncontroversial the appellants submission that the requirements of rules do not absolve decision-makers from carrying out a full merits based fact-sensitive assessment outside the rules. ARG |
This position is reinforced by the nature of the right of appeal against any adverse decision of the Secretary of State, whether made by reference to the rules or the Convention. Ratio |
As was made clear in Huang (paras 6, 17), the structure of the appeal provisions draws a clear distinction between the two. Ratio |
Thus the grounds on which an appeal may be brought (Nationality, Immigration and Asylum Act 2002 section 84(1)) include: (a) that the decision is not in accordance with immigration rules ... (c) that the decision is unlawful under section 6 of the Human Rights Act 1998 (c 42) as being incompatible with the appellants C... |
The terms of the rules are relevant to that consideration, but they are not determinative. Ratio |
(para 6) Thus, whatever the defects there may be in the initial decision, it is the duty of the tribunal to ensure that the ultimate disposal of the application is consistent with the Convention. Ratio |
This analysis provides a simple answer to the central issue in the case. Ratio |
It removes any substantial basis for challenging the new rules as such under the HRA. Ratio |
(The treatment of children under section 55 of the 2009 Act raises different issues, to which we shall return.) It follows that such a challenge in the present context must stand or fall under common law principles. Ratio |
The question in short is whether, taking account of the fact that those rules are only one part of the decision-making process, they are in themselves based on a misinterpretation of the 1971 Act, inconsistent with its purposes, or otherwise irrational. Ratio |
Under the HRA the main focus of attention shifts to the instructions issued by the Secretary of State to entry clearance officers for dealing with cases outside the rules (described at paras 20ff above). Ratio |
The question then is whether there is anything in those instructions which unlawfully prevents or inhibits them from conducting a full merits-based assessment as required by the HRA. Ratio |
As to how that question should be approached, we now have authoritative, up-to-date guidance in the judgment of the Grand Chamber in Jeunesse (paras 42- 43 above) which conveniently draws together earlier Strasbourg jurisprudence. Ratio |
As we have explained, in agreement with Lord Reed in Hesham Ali, para 42, and Agyarko, para 42, the ultimate issue is whether a fair balance has been struck between individual and public interests, taking account the various factors identified. Ratio |
The changing case for the Secretary of State Ratio |
In fairness to the appellants, and their arguments based on common law illegality, it must be acknowledged that they have been faced with something of a moving target. Ratio |
The position now adopted by counsel for the Secretary of State represents a significant change from statements made at the time the rules were laid before Parliament. Ratio |
The governments thinking at that time was explained most clearly in the Grounds of Compatibility statement, submitted to Parliament at the same time as the new rules. Ratio |
The salient passages have already been described at para 11 above. Ratio |
However, the more prescriptive approach in the new rules was triggered by the governments reaction to the decision of the House of Lords in Huang. Ratio |
Further comment on what was said about that case in the statement is called for, in the light of the way the case is now put. Ratio |
The statement noted that previous Secretaries of State had taken the position that, if the rules were thought to produce disproportionate results in a particular case, the court should itself decide the proportionate outcome on the facts before it, rather than hold that the rule itself was incompatible with article 8. ... |
This approach had been adopted by the courts, and confirmed by the House of Lords in Huang, with the result, whatever the intention of the House of Lords, that when assessing compatibility in individual cases the courts cannot have recourse to the Rules themselves but must make their own decisions on an individual basi... |
This had led to unpredictability and inconsistency which are anathema to good administration. Ratio |
(para 11) Accordingly, under the new, more prescriptive, scheme, the role of the courts would shift from reviewing the proportionality of individual administrative decisions to reviewing the proportionality of the rules. Ratio |
Those passages appear to reflect a distorted account of the legislative scheme and of the reasoning in Huang, which, had it been left uncorrected, would in our view have involved a misdirection in law. Ratio |
In the first place the opinion in Huang was not, as the author of the statement seems to have thought, a decision about the relationship of the Secretary of State with the courts. Ratio |
On the contrary it was a decision about the relationship of the Secretary of State with the specialist appellate system set up by Parliament to hear appeals by disappointed applicants. Ratio |
It was Parliament which had laid down the rules governing that system. Ratio |
In particular, it was Parliament, not the courts, which had required separate consideration by the tribunal of issues under article 8, and had placed no express restriction on the scope of that consideration. Ratio |
The House in Huang was simply giving effect to Parliaments intention. Ratio |
That position remained unchanged until the Immigration Act 2014, which post-dated the decisions in the present appeals. Ratio |
Secondly, it was wrong to interpret the House as indicating that individual decisions should be made entirely on a case-by-case basis, without regard to the Secretary of States policy, or to the need for predictability and consistency. Ratio |
Paragraph 16 of the opinion is quite clear as to the importance of such factors: There will, in almost any case, be certain general considerations to bear in mind: the general administrative desirability of applying known rules if a system of immigration control is to be workable, predictable, consistent and fair as be... |
A third misconception is the implication that article 8 considerations could be fitted into a rigid template provided by the rules, so as in effect to exclude consideration by the tribunal of special cases outside the rules. Ratio |
As is now common ground, this would be a negation of the evaluative exercise required in assessing the proportionality of a measure under article 8 of the Convention which excludes any hard-edged or bright-line rule to be applied to the generality of cases (EB (Kosovo) v Secretary of State for the Home Department [2009... |
Although Miss Giovannetti made some attempt to defend the statement, we remain unconvinced that its approach could be reconciled with the correct legal analysis, as now accepted by her: that is, that the rules are only the starting point for consideration under the Convention. Ratio |
But for the Governments altered stance, the rules read with the grounds of compatibility statement would have faced a serious challenge on grounds of error of law. Ratio |
However, the change in the Governments stance means that the error is of historical interest rather than current relevance, so long as the rules are capable of being operated in a manner consistent with the Convention. Ratio |
Regardless of what was said in the statement, the rules themselves have always made clear that they left open the possibility of separate consideration under article 8. Ratio |
That said, it remains the Secretary of States position, as we understand it, that a principal objective of the new rules was to achieve Convention-compliant decisions in the generality of cases. Ratio |
Thus, as already explained, the current instructions reflect the view that a decision in accordance with the rules will not involve a breach of article 8 save in exceptional circumstances; which expression is equated with circumstances where a refusal would lead to unjustifiably harsh consequences for the individual or... |
An important issue in the case is whether that is an acceptable approach. Ratio |
But that is an issue as to the legality of the relevant instructions, not of the rules. Ratio |
The need for consistency in decision-making Ratio |
Notwithstanding the criticisms which can be made of some of its reasoning, there is force in the underlying concerns expressed in the Grounds of Compatibility statement. Ratio |
Decision-making on the scale required by the immigration system depends on the judgements made on a daily basis by large numbers of individual entry clearance officers, and on appeal by individual tribunal judges. Ratio |
As the House recognised in Huang, fairness and consistency are important considerations at both levels. Ratio |
Before 2000, the position was reasonably clear. Ratio |
The Immigration Act 1971 established the principles governing immigration control. Ratio |
The principal machinery for achieving consistency was found in rules made by the Secretary of State under section 3(4). Ratio |
They provided the framework both for decisions by entry clearance officers and also for the then appellate authorities. Ratio |
The Secretary of State retained a residual discretion to allow entry outside the rules, but unconstrained by the Convention. Ratio |
The entry into force of the Human Rights Act was not reflected in any change to section 3. Ratio |
The Secretary of States duty under that Act to comply with the Convention was reflected in a direction to officials in the rules (see Agyarko, para 6). Ratio |
At appellate level, the assumption seems to have been that it would be enough to add a new ground of appeal by reference to the Convention. Ratio |
As the statement says, nothing was done to address the problem of achieving consistency in its application at either level. Ratio |
The Secretary of State can give guidance to entry clearance officers and expect it to be followed, but has no such power to influence the decisions of tribunal judges in respect of the Convention. Ratio |
Frustrating though it may be for the Secretary of State, under the present legislation the task of promoting consistency at that level falls to the tribunals themselves. Ratio |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.