Human Rights

The UK High Court in Nasseri v Secretary of State for the Home Department [2007] EWHC 1548 (Admin), has declared a UK ‘safe third country’ provision incompatible with Article 3 (the prohibition on torture, inhuman or degrading treatment or punishment) of the European Convention on Human Rights (ECHR). A declaration of incompatibility means that the legislation has been found by the courts to be in breach of the European Convention on Human Rights, although it is for the UK Parliament to decide whether it will remove the offending legislation. Such declarations are not made frequently and it is to be hoped that the UK would not wish knowingly to remain in breach of the Article. A new proposal for legislation on immigration, the UK Borders Bill, is currently being considered by the UK parliament and would provide an opportunity to make changes to the law. The UK government has not yet announced what it will do. It could try to appeal the decision.

In response to increasing pressure that the Border and Immigration Agency (BIA) be made subject to the duty in section 11 of the Children Act 2004 to have regard to safeguarding and the promotion of the welfare of children in carrying out their functions, the UK government have proposed a compromise as an amendment to the UK Borders Bill currently before the UK House of Lords and in a Grand Committee there from 2 July 2007.

Many agencies, including the police and the prison service, are subject to the ‘section 11’ duty to safeguard and promote the welfare of children, but the Border and Immigration Agency (BIA) has always maintained that it could not do its job if it were made subject to the duty. 

The UK government’s proposed compromise is as follows:

‘Children
(1) The Secretary of State shall issue a code of practice designed to ensure that
in exercising functions in the United Kingdom the Border and Immigration
Agency takes appropriate steps to ensure that while children are in the
United Kingdom they are safe from harm.
(2) The Agency shall have regard to the code in the exercise of its functions.
(3) The code shall come into force in accordance with provision made by order
of the Secretary of State; and an order:
        (a) shall be made by statutory instrument, and
        (b) shall be subject to annulment in pursuance of a resolution of either
House of Parliament.
(4) The Secretary of State shall from time to time review and, if necessary,
revise the code; and subsection (3) applies to a revision as to the original
code.
(5) In this section
        (a) ‘the Border and Immigration Agency’ means
                (i) immigration officers, and
                (ii) other officials of the Secretary of State, and the Secretary of
State, in respect of functions relating to immigration, asylum or nationality, and
        (b) ‘child’ means an individual who is less than 18 years old.’

It seems unlikely that the proposed compromise, which imposes no clear duties, will satisfy the government’s critics, who in the UK House of Commons included the spokesperson for the opposition Conservative party on the UK Borders Bill, Damien Green MP. Mr Green proposed an amendment that would have made the Border and Immigration Agency (BIA) subject to the section 11 duty and, when the government rejected his proposal, forced the matter to a vote.  The government won the vote, but not by a large majority.

The question being asked is, if the code does not amount to a duty to 'have regard to' the safeguarding and promotion of the welfare of children, then what does it do?  What would be in a Code of Practice that did not enjoin upon the BIA an obligation to 'have regard' to whether its action would affect the safety and welfare of a child?

The Asylum and Immigration Tribunal (AIT) has decided in AM (3rd party support not permitted R281 (v)) Ethiopia [2007] UKAIT 00058 that applicants for entry clearance (a visa) cannot rely upon third party support to satisfy the maintenance requirements of the Immigration Rules unless the Rules expressly state that they may do so. The AIT also considered the House of Lords’ judgment on Article 8 of the European Convention on Human Rights (ECHR), which protects the right to private and family life, in Huang and Kashmiri and concluded that it made no difference to the outcome of any human rights claims based upon an alleged breach of the right to respect for family and private life.

The United Nations has designated 20 June World Refugee Day, an opportunity to focus attention on those forced to flee persecution and seek protection in a country of exile.

For several years the UK has used the week around World Refugee Day to focus on those fleeing persecution in different parts of the world, and in particular the lives and contributions of those in exile in the UK.

The UK Child Exploitation and Online Protection Agency (CEOP) released a report A scoping project on child trafficking in the UK on 11 June 2007. The research is endorsed by the Home Office. 

Despite the apparent clarity of the House of Lords’ judgment in Huang; Kashmiri v SSHD [2007] UKHL11, the UK courts appear to be seeking to re-impose the ‘exceptionality’ test in respect of Article 8 of the European Convention on Human Rights (ECHR) claims.

Article 8 of the ECHR concerns the right to respect to family and private life. It is often relied upon by applicants whose claims to remain in the UK cannot succeed under the UK Immigration Rules but have established a family or private life in the UK (e.g. by marrying, forming a civil partnership or having children), often during periods of delay by the Home Office in considering their initial applications under the UK Immigration Rules.

Prior to the House of Lords’ judgment in Huang in March 2007, the test applied in such cases was that in order to succeed under Article 8, ECHR it would have to be shown that the individual case was “truly exceptional”. However, the House of Lords specifically rejected that test. They stated that it was based upon a misunderstanding of Lord Bingham’s words in the earlier case of Razgar. The UK House of Lords said in Huang:

"In an article 8 case…the ultimate question for the appellate immigration authority is whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot be reasonably expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by article 8.  If the answer to this question is affirmative, the refusal is unlawful and the authority must so decide.  It is not necessary that the appellate immigration authority...need ask in addition whether the case meets a test of exceptionality.  The suggestion that it should is based on an observation of Lord Bingham in Razgar… He was there expressing an expectation…that the number of claimants not covered by the Rules and supplementary directions but entitled to succeed under article 8 would be a very small minority.  That is still his expectation. But he was not purporting to lay down a legal test.”

There have now been a number of cases in which less senior courts have sought to interpret this decision.

In KL (Article 8-Lekstaka-delay-near-misses) Serbia & Montenegro [2007] UKAIT 00044, the Asylum and Immigration Tribunal (AIT), considered previous guidance set out by the UK Court of Appeal for considering the significance of delay in deciding Article 8 cases. They examined the judgment of the UK Court of Appeal in HB (Ethiopia) [2006] EWCA Civ 1713 in the light of the House of Lords’ judgment in Huang. The Court of Appeal had said in HB that:

What is the policy?

One of the less well publicised policies of the Secretary of State for the Home Department is that benefiting children with over seven years residence in the United Kingdom. Although there is some uncertainty as to the exact wording of the policy, the courts have expressed the view that it is likely to be based on two statements. The first is:

On 24 May 2007 the UK Court of Appeal upheld a decision that two Orders made by the UK government about the British Indian Ocean Territory, the Chagos Islands, which include the island of Diego Garcia, constituted an ‘abuse of power’.

Stop press: see subsequent Certificate of Approval articles in the 'Family Immigration'  section of Gherson and Co. articles for details of further information issued by the Home Office.

The new proposal for immigration legislation in the UK, the UK Borders Bill, has been considered by a Committee in the UK parliament’s House of Commons. The UK Borders Bill will soon be considered by the whole House of Commons.  Members of the UK parliament are proposing changes to the Bill (amendments) for the whole House of Commons to consider.