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Immigration Control and the Place of Article 8 in the UK Courts - an update

York, Sheona (2015) Immigration Control and the Place of Article 8 in the UK Courts - an update. Journal of Immigration, Asylum and Nationality Law, 29 (3). pp. 289-307. ISSN 1746-7632. (The full text of this publication is not currently available from this repository. You may be able to access a copy if URLs are provided)

The full text of this publication is not currently available from this repository. You may be able to access a copy if URLs are provided. (Contact us about this Publication)

Abstract

Propelled by the commitment to ‘reduce net migration to the tens of thousands’ and a decision to expel all ‘foreign national criminals’, the coalition government took steps to reduce the reach of article 8 ECHR. Following the 2012 introduction of the new family migration and private life rules most of the early leading cases concerned deportation appeals of foreign national prisoners, and considered to what extent the new rules provided a ‘complete code’ for balancing the individual’s right to family life against the Secretary of State’s view of the public interest. Alongside that litigation, the High Court and Court of Appeal considered the lawfulness of the new financial requirements for family migration, and the Court of Appeal decided in July 2014 that those were not incompatible with the Convention, and briskly clarified the ‘complete code’ issue. However, many decisions by the Secretary of State and the FTT maintained that in the absence of any ‘exceptional or compelling circumstances’ there was no need to consider article 8 at all. Further litigation appeared to re-establish that if an applicant unable to meet the rules could point to circumstances engaging art 8, and where such consideration would not simply arrive at the same answer, then those circumstances should be considered, following Huang and Razgar as before. In July 2014 the Immigration Act (IA) 2014 introduced a new Part 5 into the Nationality, Immigration and Asylum Act (NIAA) 2002, headed Article 8 of the ECHR: public interest considerations, placing the government’s view on article 8 firmly in primary legislation. While the Upper Tribunal, considering the new ss117A-D, quickly decided that even where the rules appear to provide a ‘complete code’, there was still room for the exercise of discretion, a series of Court of Appeal cases on deportation of foreign criminals stress the need to consider article 8 ‘through the lens of the rules’, and emphasise the ‘great weight’ to be given to the Secretary of State’s expression of the public interest. Meanwhile, in April this year the Inner House of the Court of Session (in Mirza and other cases) handed down judgments appearing to follow the ‘previous caselaw’ approach. This article examines the main cases and considers the constitutional and practical implications.

Item Type: Article
Uncontrolled keywords: Family migration, Article 8 ECHR, Complete code, Insurmountable obstacles, Precarious
Subjects: K Law > KD England and Wales
Divisions: Faculties > Social Sciences > Kent Law School
Depositing User: Sheona York
Date Deposited: 06 Oct 2015 16:20 UTC
Last Modified: 29 May 2019 16:05 UTC
Resource URI: https://kar.kent.ac.uk/id/eprint/50787 (The current URI for this page, for reference purposes)
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