Introduction to Immigration law
Immigration law is set of rules and regulations for the individuals who had entered and get settled in UK. Generally migrants are of two types i.e. individual seeking asylum as their home country had become hazardous or they had other economic reasons such as job, marriage etc. These provisions are supported by aspects of Human right act to promote equality and fairness. This rights have huge impact of the family life of migrants. HRA is comprises of series of sections which have codified effect for the protection of European convention. According to the provisions of this Act, all individual has right to take action for the contravention of their human right in domestic courts. Protection from HRA is provided to all individuals regardless of their citizenship and immigration status. Further most of the international criminals, unsuccessful asylum seekers and benefit "tourists" are taking benefit of HRA to remain in UK and attempt is made by Home office to deport them. Present report will include description of provisions of Human rights Act and immigration law. On the basis of explanation of provisions impact of the Human Rights Act on the family life of migrants will be assessed. For better analysis reference of previous case precedent will be given in present report. Description will be based on the Article 8 of European Convention on Human Rights. This Article is closely related to the other rights protected under the convention.
In statutory provisions of UK there is absence of enshrined right for British resident to be joined by their members of family. Thus these rights were introduced in the “Sections” of immigration law. Provisions of immigration law is influenced by both human right norms and European Union law. Article 8 of the ECHR (European Convention on Human Rights) had provided that each individual has right to get respected for their family and personal life . This article is qualified instead of being of absolute right in present era. In the second part of this article, description is provided regarding several circumstances in which public authorities are entitled ton interfere in applicability of these rights.
Position of immigration law before and after HRA 1998
There is vital role of human rights in immigration law before introduction of the HRA 1998. Prior to this Act there were interpretative functions and government policies to protect the human rights. Further ECtHR was developed a court of last resort. In the case of Abdulaziz, Cabales and Balkandali v UK, applicants were lawfully settled in UK permanently. According to the immigration rules enforceable at that time Mr. Abdulaziz, Cabales and Balkandali were denied for the permission to remain with or them in UK as husband. In this case marital ules were discriminated against men and other British citizens who were not born in UK.
To overcome these issues HRA 1998 were developed by parliament of UK. As per this Act, Public authorities were obliged to act in accordance with convention rights. Exceptions to the provisions of this Act will be a 1985 7 EHRR 471pplicable as per the requirement of primary legislations. According to the description of this Act public authorities are comprises of immigration officers, Secretary of State, tribunals, courts and entry clearance officers . In addition to this, public and private bodies engaged in immigration acts will also be obliged to follow these norms.
Immigration rules will not be obedient ton the HRA provisions in all case scenarios. Rules of immigration are required to be developed and applied as per their natural and original meaning. Modification of wording of rules is not required for compliance with the convention rights.
Impact Of The Human Rights Act On The Family Life Of Migrants
Right to respect for family life
This right is not recognized in the ECHR but this is a fundamental right of human being. Description for this right is given 1985 7 EHRR 471 in International Covenant on Civil and Political rights 1966 and Universal declaration of Human rights 1948. Both of these Acts impose restriction on the unethical interference in 1985 7 EHRR 471family or personal life of individual . In domestic law, remedies are provided for the breach through the provisions of HRA 1998. Description of this as per the article is as follow-
1. Each individual has right to get respected for their family, home, correspondence and personal life.
2. Public authorities are not entitled to interference due to the applicability of this right.
Article 8 provides qualified right to the individual thus interference can be done if it is mandatory in a democratic society and it is in interest of national security, economic well-being of country, public safety, for protection of heath or moral or rights, freedom and prevention of crime or any disorder. These circumstances and exceptions are described in Article 8 (2). This part imposes obligation on state to demonstrate that interference will be in accordance with the social need and it is proportionate to the legitimate aim of being pursued. This obligation is imposed to provide assurance to general public that interference will only be done if it is justified to do so.
According to the Human Rights Act 1998 (HRA), these obligations is placed on the stated by the European Convention on Human Rights and further it passes to all the public authorities. Ultimate decision will be taken by court of law by applicability of the test of proportionality to determine whether interference is justified or not. This article basically imposes two kind of obligation on the state and public authorities. Description of these obligations is as follow-
Negative obligation- As per this obligation public authority should not interfere in private life, family life, their correspondence and home.
Positive obligation- As per this obligation public authority is required to take steps for the assurance of effective respect for the private life, family life, their correspondence and home.
As per these rights it can be noticed that HRA has great influence on the family members of migrants because due to the immigration life of family members is also influenced. In the case scenario of Abdulaziz, Cabales and Balkandali v UK controls under immigration were required to be exercised consistently with the obligations of convention. Exclusion for a person can be made by state where family members of individual raise issue under provisions of Article 8. However state can have wide margin of appreciation. There will be no general obligation to respect the choice of country made by married couples of their matrimonial residence . Claim made by the claimant in this case was held successful but on the base of gender discrimination.
After this case precedent, there were only few cases upheld in which children were involved. In the case of Sen v Netherlands , breach of Article 8 was identified. In this case scenario decision to leave child was intended to be temporary and due to this elder children would face disruption if his family moves from Netherlands. Similar scenario was occurred in the case of Jeunesse v Netherlands. In this situation breach of article was not followed for the refusal of admission of mother who was present in the territory but she was treated as overstayer. Thus judicial person said that husband and her children were Dutch nationals .
Private life- Private life of individual includes psychological and physical integrity. In this information of identity, autonomy, sexuality and self-development.
Family life- Concept of family life is articulated through the formal or traditional relationship of person with their social groups.
Home- Residential area and business premises of individual
Correspondence- It will include postal correspondence, emails, text messages and telephone calls
Restrictive view of family life
Article 8 provides protection to the existing relationships not to the future relationship of individual. For example right provided to the married couple will not be provided to the couple who are merely in a relationship. It is because there is no existence of their relationship in the eyes of law. Further lawful and genuine marriage will only be considered for family. However consideration will also be reliable if marriage is not yet cohabited . In addition to this protection is provided to dependant members such as minor children and biological and adoptive parents. Protection will also provide if parents are not living with their children or there is different relationship between individual but it should be supported by dependant fact.
Function of review and scrutiny
It is a primary function of court to the review the case scenario and apply the anxious scrutiny. As per this function claim of claimant was overruled R v SSHD exp. Mahmood . As a effect of subsequent article only exceptional case will be succeed.
Vice-versa of position by House of Lords
This function was developed from the case precedent of Huang v SSHD . Appellate court is entitled to reach on their own decision on the basis of compatibility in article 8. It is general fact that humans are social animals and they are dependent on others. Social groups of individual (family or extended family) provided them emotional, social and financial support to lead a better life. Still there is point of turnaround in life at which individual has to face unavoidable separation from their social group to lead fulfilling lives . In such situation no test of exceptionality will be applied.
Importance of individualized decision making
Court will make their own decisions for article 8 in the cases of judicial review. Further there will not be discrimination between cases of admission and expulsion. Interest of children are most essential consideration in decision making under immigration law by courts. It will also include those factors that may affect children. In the case of ZH (Tanzania) v SSHD , fact of interest was considered for making immigration decision.
Clarified principles declared by the case of FZ V SSHD
- Best interest of children is an integral part of assessment of proportionality.
- Interest of child must be primary but not only primary consideration. Further it should not be paramount.
- Best interest of children can be overweighted through the cumulative effect of other considerations.
- It is essential that decision making process should be structured for the assurance of best interest.
- No substitute will be considered fair for the careful examination of relevant factors related to the case scenario.
- Blame of others should not be burdened on child for which they are not responsible .
Amendment was made by government in immigration rules in July 2012. It was done after the parliamentary debate for reflection of their view in article 8. New rules under this article will provide more explicit coverage for the relevant factor and it would be applicable in most of the cases. If situation is not covered in the described rules than outsider rules will be considered for judgement . In Some cases stronger protection is provided by article 8 in comparison to immigratio UKSC 4n law. However each case scenario should be fact specific and it should be favour in interest of government.
New Eligibility Requirements
Individuals who have established family life in the UK
New eligibility requirements were introduced for the several family related immigration categories (to leave or remain as a partner of settled or British person). By fulfilling these requirements migrants will be able to live as resident in UK. If applicants are not able to satisfy the eligibility requirements of five year route than they will granted by 30 months temporary leave in UK to remain on family life ground . This benefit will be provided only if they have genuine and subsisting relationship with their partner in UK. There partner should be British citizen or provided with refugee leave or settled in UK or have Humanitarian Protection. In addition to this, there should be “insurmountable obstacles” if family life is continued outside UK . There must subsisting and genuine relationship between parent and child in the UK. Age of child should be less than 18 and he or she should be British citizen or they should be living in UK continuously for 7 years. In these types of cases permission of work is granted to the applicants but they are likely to be covered in provisions of “no recourse to public funds” until and unless they provide evidence for the exceptional circumstances. Further details will be provided through the Home Office policy guidance regarding such cases.
Individuals who have established a private life in the UK through long residence
Prior to the 9th July 2012, it was described in immigration rules that persons who have spent more than 14 continuous years in UK are entitled to apply for indefinite leave to remain in UK. However this provision was altered by HC 194. New requirements for the eligibility is now as follow-
- Individual should have completed at least 20 years in UK. This period should not be discontinued by any period of imprisonment. Or
- If individual is less than 18 then he had completed at least 7 years in UK. This period should not be discontinued by any period of imprisonment. Further no excuse will be considered reasonable to expect the applicant to leave UK . Or
- If age of individual is between 18-25 and he or she had spent half of their life in UK in continue period. Or
- If individual is able to satisfy first condition but has no ties with the nation to which he would have to go if it was required to leave UK.
If applicant is able to satisfy one of the described condition then they will be entitled to remain for maximum period of 30 months. They will permitted for commercial work but grant of public funds will only be provided in the exceptional circumstances . These persons will be entitled for the indefinite period after they had completed a period of ten years as a lawful resident of UK. In addition to this, if they satisfy the described condition then they are also entitled to apply for permanent settlement on the basis of their long residence.
From the present project report it can be concluded that migration of individual influences life of family members. Social groups of individual (family or extended family) provided them emotional, social and financial support to lead a better life. Thus to provide better decisions provisions of immigration law is supported by Human rights Act. This Act is comprises of series of sections which have codified effect for the protection of European convention. As per the provisions of this Act, all individual has right to take action for the contravention of their human right in domestic courts. Protection from HRA is provided to all individuals regardless of their citizenship and immigration status. There is vital role of human rights in immigration law before introduction of the HRA 1998. Prior to this Act there were interpretative functions and government policies to protect the human rights. To overcome issues in this policy HRA 1998 was developed by parliament of UK. As per this Act, Public authorities were obliged to act in accordance with convention rights. Exceptions to the provisions of this Act will be applicable as per the requirement of primary legislations.