Thursday, 17 October 2013

"Article 8 of the ECHR: Public Interest Considerations" provision in UK immigration Bill

The UK Government have published the extensive Immigration Bill 2013-2014. One significant clause in the Bill is an amendment to the Nationality, Immigration and Asylum Act 2002 consisting of a new section, 'Part 5A - Article 8 of the ECHR: Public Interest Considerations', dealing with: 

This Part applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts—
(a) breaches a person’s right to respect for private and family life under Article 8, and
(b) as a result would be unlawful under section 6 of the Human Rights Act 1998.


Part 5A makes a number of provisions designed to shape the interpretation of Article 8 of the Convention by courts or tribunals who are reviewing immigration decisions. One important aspect is the statutory obligation it will place on courts and tribunals to observe the following principle when balancing the public interest with an individual's Article 8 rights:

(4) Little weight should be given to— 
(a) a private life, or
(b) a relationship formed with a qualifying partner, that is established by a person at a time when the person is in the United Kingdom unlawfully.  

The Explanatory Notes to the Bill state:

In July 2011 the Home Office published a consultation paper on Family Migration. On 11 June 2012 the government published its response to the consultation setting out that Immigration Rules would be made to reflect the government’s and Parliament’s view of how the balance should be struck between the right to respect for private and family life under Article 8 of the ECHR and the public interest, including safeguarding the economic well-being of the UK, enforcing immigration controls and protecting the public from foreign criminals. New Immigration Rules came into force on 9 July 2012. The Bill gives the force of primary legislation to the principles reflected in those rules by requiring a court or tribunal, when determining whether a decision is in breach of Article 8 ECHR, to have regard to the public interest considerations as set out in the Bill.

The Bill is due to receive its Second Reading on 22 October 2013. 



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