In this blog post, Jacqueline Moore examines recent legal developments in Immigration Law, and trends in Home Office practice and how these impact on families where one parent is not British.

No family wants to be forced to live apart against their will.  Although the right wing media does its best to stir up a "them" and "us" mentality.  The reality is that there are thousands of British children living in the UK with a non-British parent.  There simply is, no "them" and "us" in modern Britain.

Although, the law is becoming increasingly more progressive where children's rights are concerned, regrettably, in practice, Home Office case-workers routinely ignore what the law says and continue to make negative decisions, undoubtedly driven by their core goal of reducing migration. 

A very good example of the gap between the law and practice, is the Home Office's interpretation of the important new section 117B(6) of the Immigration Act 2014. 

Section 117B(6) – what does it say and what does it mean

The Immigration Act 2014 was heralded by the Government as an Act designed to make life more difficult for illegal migrants and it introduced many punishing provisions for migrants and their families, e.g. powers to revoke driving licences, prevent migrants opening bank accounts and penalties for landlords renting to migrants.

However, the Act also contained some pleasant surprises, and s117B(6) is the best example of this.

Section 117B is a statutory provision which contains mandatory instructions to Immigration Judges who are faced with the task of balancing the competing rights of the state against the individual in a case where the individual has sought to remain based on their right to family life in the UK.

The right to family life is enshrined in Article 8 of the European Convention on Human Rights.  It is not an absolute right.  The State can interfere with that right, where that interference is ”proportionate”.  Whether an interference is “proportionate” involves a balancing exercise, whereby an Immigration Judge is required to set the scales; placing on one side all those factors that favour the individual and on the other side the State’s interest in maintaining immigration control, which ever side tips the scales in that exercise, will be the victor in a human rights appeal.

The previous Coalition Government introduced primary legislation contained at Section 117B as they sought to tell Immigration Judges where the public interest lies.  The Secretary of State has made no bones about her dissatisfaction with the high number of human rights appeals that were being allowed; in her view by overly lenient Immigration Judges who failed to properly take into account the public interest.  Section 117B was designed to tell the Judges how to determine where the public interest lies.  Its important to note, that while Parliament has legislated on where the public interest lies, the balancing exercise between the individual’s right and the public interest remains the task of the independent judiciary.

The first subsection of Section 117B states simply:

(1)      The maintenance of effective immigration controls is in the public interest

Subsections (2) through to subsection (6) then proceed to narrate factors which relate to what is considered to be in the public interest, eg it is stated that it is in the public interest that applicants can speak English.

Subsection 117B(6) states as follows:

In the case of a person who is not liable to deportation, the public interest does not require the person’s removal where-

(a)    the person has a genuine and subsisting parental relationship with a qualifying child AND

(b)    It would not be reasonable to expect the child to leave the UK

Does this section actually mean what it appears to say, i.e. that a non British Parent in a non criminal case can stay in the UK if they have a genuine and subsisting relationship with a British child

In the writer’s view, it means exactly what it says and it is a hugely significant positive factor in any case involving a non British parent with a British child.  There are 3 reasons for such an interpretation.

Firstly, it is now accepted in case-law that it is not reasonable to expect a British child to leave the UK, children being entitled to enjoy the right to live in their country of nationality, and therefore to remove their non British parent, and cause separation between parent and child would be a blatant breach of this protected  family life. 

Secondly, the proportionality exercise is a balancing exercise, if the public interest does not require removal then the scales in favour of removal must always be lighter than the scales in favour of the appellant and the appellant therefore must succeed.

Thirdly, this is the literal interpretation of the Statute and it’s difficult to see how Parliament could have meant any other interpretation here.

Unfortunately, whilst such an interpretation may seem obvious to most, others, the Home Office and in one case an Immigration Judge, have taken a different interpretation of this primary legislation.  In another case, where an Immigration Judges allowed an appeal on the basis of this section, the Home Office have sought to appeal the decision.

Like almost every other change in immigration law, we will have to wait until the Higher courts interpret this provision, to obtain an interpretation, hopefully a positive one that the Home Office will adhere to.

In the meantime, although the law appears progressive in this area, it is likely that Home Office decision makers will continue to issue negative decisions which will require challenge through the courts, causing unnecessary anguish to families many of whom have children amongst their number who are old enough to understand that the State wants to remove their parent, which for many children must be profoundly upsetting.

If you and your family are affected by any of the above issues, please contact the Immigration Team - we have extensive experience in cases involving families and in challenging decisions of the Home Office in this sensitive field.