Immigration Act 2014 has amended Nationality Immigration and Asylum Act 2002 introducing a new section Part 5A “Article 8 ECHR: Public Interest Considerations”. This part of the Act is in force from 28 July 2014 and is now binding law on immigration judges.
The new provisions apply where a court or tribunal dealing with an immigration appeal is required to determine whether the decision of the immigration authorities breaches the individual’s right to respect for private and family life under Article 8 ECHR.
In immigration appeals, other than those related to deportation of foreign criminals, Immigration judges are bound by the following statutory provisions:
- Maintenance of effective immigration control is in the public interest.
- It is in the public interest that the persons seeking leave to enter or remain are able to speak English. In other words, there is less public interest in opposing an application made by someone who has a decent command of English.
- It is in the public interest that persons seeking leave to enter or remain in the UK are financially independent. In other words, there is less public interest in opposing an application made by a person who will not be a burden on the public purse.
- Little weight is to be given to private life or relationship formed with a partner while the appellant was unlawfully in the UK.
- Little weight should be given to a private life established while the person was in the UK on a temporary leave (in other words without indefinite leave to remain).
- Last and most important, public interest does not require the appellant’s removal where the appellant has a genuine and subsisting parental relationship with a qualifying child and it would not be reasonable to expect the child to leave the United Kingdom.
“Qualifying child” is defined in the Act as a child under the age of 18 who is either a British citizen or has lived in the UK for a continuous period of seven years.
The last provision is a positive development for families with children. However, we will need to see how the courts interpret the qualifying statement or when the courts would find it reasonable to expect the qualifying child to leave the UK. It is accepted law that a British child cannot be expected to leave the UK. But there is no equivalent clarity with reference to children who have lived in the UK for seven years.
Public interest in maintaining effective immigration control may support an argument that leaving migrants in limbo status is contrary to the public interest.
