Impact of immigration changes on human rights

The Government has announced changes to the Immigration Rules for family migration as part of its programme of reform of the migration routes. These changes are due to come into effect in July 2012.

As part of these changes, the Government intends to end the situation where those claiming the right to enter or remain in the UK on the basis of ECHR Article 8 – the right to respect for private and family life – do so essentially without regard to the Immigration Rules.

The new rules will reflect fully the factors which can weigh for or against an Article 8 claim. They will set proportionate requirements that reflect, as a matter of public policy, the Government’s and Parliament’s view of how individual rights to respect for private or family life should be qualified in the public interest to safeguard the economic well-being of the UK by controlling immigration and to protect the public from foreign criminals. This will mean that failure to meet the requirements of the rules will normally mean failure to establish an Article 8 claim to enter or remain in the UK, and no grant of leave on that basis.

The Immigration Rules will reflect the UK Border Agency’s duty to have regard to the need to safeguard and promote the welfare – or ‘best interests’ – of children who are in the UK. The rules will set clear thresholds for the impact of an applicant’s criminality on the scope for them to be granted leave to enter the UK on the basis of their family life or leave to remain in the UK on the basis of their family or private life. The rules will also reflect the fact that family life established when the parties knew one or both of them lacked a valid basis of stay in the UK carries less weight under the case law of the European Court of Human Rights.

In particular:

• Only in exceptional circumstances will family life, the best interests of a child (even though always a primary consideration) or private life outweigh criminality and the public interest in seeing the foreign national criminal deported where they have received a custodial sentence of at least four years.
• Deportation will normally be proportionate where the foreign national criminal has received a custodial sentence of at least 12 months and less than four years, or has received a custodial sentence of less than 12 months and, in the view of the Secretary of State, their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law.

If an applicant fails to meet the requirements of the new Immigration Rules, it should only be in genuinely exceptional circumstances that refusing them leave and removing them from the UK would breach Article 8.

Contains public sector information licensed under the Open Government Licence v1.0.