The Immigration and Asylum Bill is the government’s third attempt to directly change how judges interpret and apply Article 8. Below I assess the likely impact of the proposed changes in the context of the previous reform efforts in 2012 and in particular 2014. I argue that (a) as previously the Bill does not require the courts to decide Article 8 cases differently; (b) the reform model employed has already failed to influence the courts in the intended direction, although (c) the reforms will successfully overturn Supreme Court decisions which held that the 2014 changes created new rights for foreign nationals.

Part 2 of the Bill amends the Nationality, Immigration and Asylum Act 2002 part 5A, which was introduced via s19 of the Immigration Act 2014. These provisions require that courts and tribunals ‘have regard’ to a complex set of ‘public interest considerations’ when deciding an Article 8 claim. These considerations are of three types: some factors are specified as in the public interest (eg that people can speak English); others to which judges should give ‘little’ or now ‘no weight’ (eg family life formed when in the UK unlawfully); and some circumstances are specified as to when it is not in the public interest for someone to be removed or deported (eg if unduly harsh on their partner). The new Bill continues this basic structure, adding new, invariably ‘stricter’ or ‘tougher’, considerations.

Notwithstanding the intention behind it, the impact of s19 was remarkable. It created new unqualified or absolute statutory rights for foreign nationals to resist deportation or remain in the UK, primarily benefiting, as the courts have acknowledged, foreign criminals and other ‘undeserving applicants’ whose wrongdoing was such that they would fail with an Article 8 claim decided in accordance with the Strasbourg jurisprudence: the opposite of what the government claimed would happen. This effect though is practically unknown even amongst academics. In a recent widely-circulated report, for instance, aimed at addressing supposed misinformation propagated by politicians and the right-wing press the authors claim that:

deportations can generally only be stopped under two grounds: where an individual faces a serious risk of torture or inhuman treatment (Article 3 ECHR) or death (Article 2 ECHR) if deported; or it would be “unduly harsh” for their families (Article 8 ECHR), and where these consequences outweigh the public interest. When making decisions in human rights-based appeals against deportation of foreign national offenders, judges rely on a detailed statutory code set out by Parliament which restricts the application of the ECHR to such narrow circumstances.

As will be clear from the below, both the Article 8 claims made above are false the unduly harsh test does not involve balancing against the public interest and Article 8 is not restricted to ‘narrow’ circumstances, whether through a statutory code or otherwise. 

Section 19: bark

During the 2014 Act’s legislative passage the most controversial aspect were provisions s117B(4) & (5), which required the courts to give ‘little weight’ to family and private life established at a time when the person is in the UK unlawfully and private life established when someone’s immigration status is precarious. However, in Rhuppiah, the first Supreme Court case concerning s19, the court held that the Act could not require a decision incompatible with the Convention due to the ‘flexibility’ provided by the fact that the court was only required to ‘have regard’ to these provisions. Accordingly, there would be no need to resort to the interpretive power contained in s3 or to consider making a declaration of incompatibility under s4 HRA: the ‘have regard’ device is simply insufficiently potent to lead to a Convention incompatible outcome even if the specified consideration (eg giving little weight) would, if strictly applied or followed, have this effect. 

This same basic approach would be applied to s117C, which is largely a set of seemingly prescriptive provisions about when a foreign criminal can succeed with an Article 8 claim: if sentenced to between one and four years (‘medium offenders), the claim can succeed only if integration criteria are met (‘exception 1’) or if the impact would be unduly harsh on their child or partner (‘exception 2’); if sentenced to more than four years, the claim can succeed only if there are very compelling circumstances ‘over and above’ exceptions 1 and 2. 

But the ‘over and above’ requirement, the courts would go on to hold, just means that the claim must be ‘especially strong’, as would be expected, under the Strasbourg jurisprudence, for anyone sentenced to more than four years in prison. Despite the restrictive statutory language, the Supreme Court held that the very compelling circumstances test is simply a ‘full proportionality assessment’ based on the Strasbourg criteria (the length of the applicant’s stay, solidity of social ties etc). Moreover, although medium offenders can seemingly only rely on exceptions 1 and 2, the courts held this was a ‘drafting error’. Hence, all foreign criminals, regardless of their sentence, can rely on a ‘multi-factorial’ and ‘holistic’ proportionality test just as they could prior to the Act. The upshot is that the Act did not in practice weaken Article 8 protections.

Section 19: bite

Yet, the impact of the Act would be significant. Even though the Act did not weaken Article 8 protections it could still, the Supreme Court would decide in KO and HA, strengthen the rights of foreign nationals, providing greater protection than provided by Strasbourg. Of course, the court did not put the point as clearly as this, but this was the effect of its approach to s117C(4) & (5) (the two exceptions for ‘medium’ offenders) and s117B(6) (it is not in the public interest to remove a person not subject to deportation if it would unreasonable for their child to leave the UK). The issue arose as to how these provisions should be understood. Did they require, in accordance with Article 8, a balancing exercise, such that it would be unduly harsh on a child or partner only if the impact on them of the offender being deported outweighed the public interest in their deportation. Or were they essentially absolute or unqualified like Article 3: if the impact on the family member reached the set threshold of being especially harsh (or unreasonable), then it would be unlawful to deport (or remove) the person regardless of the strength of the public interest.

The court adopted the unqualified interpretation even though it could result in some perverse (and politically toxic) outcomes: someone convicted, for instance, of sexual offences against children, and who remained a risk to other people’s children, would be able to remain in the UK if the impact on their own children of their deportation would be too harsh: indeed, they could even remain if they posed a risk to their own children and their deportation would be too harsh on their partner. That is, a person’s deportation would be blocked not because they would be at risk of torture or inhuman or degrading treatment as per Article 3 but because, in a decision upheld by the Supreme Court in the leading case, it would negatively impact on their children’s development (‘sexual’, ‘socio-economic’, ‘educational’), ‘emotional needs’ and ability to participate in ‘extra-curricular activities’, along with being unduly harsh on the partner by affecting her ‘ability to continue to work as a nurse’ and negatively impacting on her ‘emotional instability’ and ‘medical conditions’ (IBS and adenomyosis). Whilst this is obviously not a standard equivalent to a child not liking the chicken nuggets in their father’s country as per tabloid lore, there was nothing unusual about the consequences for the children or partner in this case and it would be surprising if there are many families where deportation would not have a similar impact. 

Accordingly, on the Supreme Court’s approach, it is irrelevant how someone entered the country, how their family life was formed, how many bogus asylum applications they have made, whether they fraudulently obtained British citizenship, the extent of their criminal offending (unless sentenced to more than four years for an offence) and whether they are solely dependent on welfare etc. Article 8 as understood by Strasbourg of course does not exclude such outcomes but because of the balancing exercise there should be very few, if any, cases when someone who is a significant risk to the public will succeed. Nonetheless, the Supreme Court decided unanimously in KO that both provisions conferred unqualified rights, with no balancing required: if the impact of the deportation would be too harsh on a partner or child, the person challenging deportation can stay; for someone not subject to deportation if it would be unreasonable for their child to relocate, they can stay. 

How did the court reach this conclusion? In a unanimous judgment, Lord Carnwath claimed that the point of the Act was to ‘limit the scope for judicial evaluation’ and so this would be better fulfilled if no balancing took place – a strange claim to make of legislation which requires judges to ‘have regard’ to various factors, with no basis at all for this ‘aim’ in the parliamentary debates or materials. In the debate the Home Secretary claimed that the Bill ‘will end the abuse of Article 8’ and that the ‘public are fed up with cases where foreign criminals are allowed to stay because of an overly generous interpretation by the courts of article 8’. Similarly, the Shadow Home Secretary said ‘the Bill is sensible’ since it ‘restricts some of the rights under article 8’. Unsurprisingly, MPs with a record of defending migrant rights – Jeremy Corbyn, Diane Abbott etc – criticised the changes, with one describing how ‘the redefinition of article 8… made me shudder’. On the Supreme Court’s reading, it seems Parliamentarians had no idea what they were legislating. 

Second, Lord Carnwath claimed that the legislation was intended to be compatible with the ‘best interests’ of children, including ‘the principle that ‘a child must not be blamed for matters for which he or she is not responsible, such as the conduct of a parent’. Accordingly, if a balancing exercise were to be conducted, then this would be to hold the child ‘responsible for the conduct of the parent’. It is hard to know where to start with this reasoning. Obviously, no one is blaming or holding responsible the child when their parent is deported for committing serious criminal offences (just like when the parent is imprisoned in the first place), whilst on Lord Carnwath’s account the Strasbourg court and the domestic courts themselves (absent decisions falling under the two sections) are systematically infringing the best interest principle and ‘holding children responsible’ since they conduct a balancing exercise under Article 8 (and under the ‘very compelling circumstances’ test for foreign nationals sentenced to more than four years). 

In any case, it is unclear why the best interest principle, however understood, is in play when it comes to the interpretation of the two sections. The issue is whether the provisions confer rights in excess of the Convention, and since no Convention right will be interfered with through conducting a balancing exercise, it cannot be the HRA which favours the unqualified interpretation. The principle of legality is equally irrelevant since there was no prior unqualified right to remain with which the legislation could interfere. 

Some readers may also wonder why the ‘have regard’ device is insufficiently potent to require a Convention incompatible outcome (triggering s3 or s4 HRA), but sufficiently potent to create new unqualified rights. But this discrepancy has to my knowledge never been addressed. 

The courts then added to these protections by deciding that s117B(6) applied regardless of whether the child will leave the UK. That is, a migrant resident unlawfully has a right to remain in the UK on the basis that it would be unreasonable for their child to accompany them if removed even if it is accepted that the child will not in fact accompany them (eg because of living separately with their mother). Since s117B(6) is unqualified it makes it extremely difficult for a parent to be removed if they are from many developing countries, especially least developed countries, as it will almost always be unreasonable to expect the child to move to such places. It also incentivises migrants to prolong their unlawful stay since once the children are at school, integrated etc it will be even less likely that it will be judged reasonable to relocate. 

Under the Strasbourg jurisprudence, it will never infringe Article 8 to remove an ‘irregular’ migrant based on what won’t happen. Strasbourg has also recognised the importance of disincentivising strategic conduct, particularly preventing migrants from believing that having a child in the country where they are unlawfully resident is a ‘fait accompli’, ie a practical guarantee of a successful Article 8 claim, and so, unlike with s117B(6), such conduct can be weighed against the migrant in the balancing exercise. To be clear: s117B(6), like the rights conferred by s19 on foreign criminals, is an additional right: the migrant can still rely on a conventional Article 8 balancing test if they fail with the ‘statutory’ claim.

The new Bill: bite

The Bill will be effective in reinstating a balancing exercise under s117C. Clause 20(3) explicitly states that deportation will be required ‘unless its effect on the person or a member of their family would be disproportionate’. 

S117B remains unqualified but the ‘unreasonable’ threshold will now be defined in the statute (clause 19(7)). It will be unreasonable to expect a child to leave the UK ‘if (and only if)’ some demanding conditions are met, eg if the child would not receive any education in the new country. The Bill also states that if the child will remain in the UK, then the migrant will have to show that their removal will have ‘a very significant and long-lasting adverse effect on the child.’ It is clear that under the Bill the reasonableness provision is only triggered if the child will actually accompany the removed parent, since if not the ‘very significant’ test applies. 

To this extent at least, the new Bill realigns domestic human rights law with the Convention: although s117B might still be unqualified, the criteria are now so demanding that there should be very few, if any, cases where the section would lead to a different outcome from Article 8. 

The new Bill: otherwise all bark?

But what else can we expect from the Bill? If the courts continue the current approach in which (a) the ‘have regard’ device cannot lead to a decision that would be incompatible with the Convention and (b) Article 8 requires that all foreign nationals are entitled to a full, holistic and multifactorial proportionality test in which the tribunal decides for itself whether Article 8 has been infringed based on the Strasbourg criteria then very little, if anything, at all seems likely to change.  

Strengthening, for instance, the ‘little weight’ provision to ‘no weight’ seems pointless, since it is well established that under the Strasbourg jurisprudence that it can infringe Article 8 to deny leave when family life is developed when the foreign national(s) is (and always has been) unlawfully resident based on the impact that removal will have on family life. Or, as it was put 20 years ago, under the Convention there is ‘A Human Right to Regularise Illegal Stay’.

Similarly, it is difficult to see how the various changes to s117B(1)-(3) (ie considerations that are in the public interest) could make any difference. It is conceivable that in a finely balanced case the judge having regard to the fact the claimant will, for instance, need long-term care in the UK (clause 19(2)(C)) could tip the balance. Yet, judges already recognise the public interest in immigration control, financial independence and that weight needs to be given to both government policies and the reasons relied on individual cases, and so it seems unlikely that having regard to a few additional factors will make a difference when someone has a strong claim based on their family or private life. 

The current approach means that the two ways in which the Bill can have an effect is either through (a) strengthening protection or (b) removing ‘excess’ protection, ie requiring or prompting the courts to recalibrate those areas of jurisprudence where tests are employed which are more generous than required by Strasbourg. Whilst the ‘creativity’ of the domestic courts should not be underestimated, it is difficult to see how the courts will read into the new Bill additional protections as they did with s19. As to (b), the 2012 immigration rule changes, which for the first time sought to directly influence judicial interpretation of Article 8, were impactful because the courts were applying a general reasonableness test (eg an unlawful migrant could remain if it would be unreasonable for their British citizen partner to relocate) which was more generous than the Strasbourg criteria and the rule changes prompted the courts to shift to a more demanding test (ie ‘compelling’ or ‘very compelling’ circumstances’). 

There was nothing in the 2012 changes which required the courts to employ a stricter proportionality test (or for that matter adopt ‘an all or nearly all cases’ test when an immigration rule is directly challenged). But the 2012 changes created lots of litigation, and this provided an opportunity for some judges to recalibrate Article 8 in a restrictionist or conservative direction. The 2014 Act in contrast did not prompt any changes in the approach to Article 8, although it did provide an opportunity for (sometimes the same) judges to adopt a liberal reading of the statute, creating new rights in addition to the Convention. Accordingly, even though a legal analysis suggests that the impact of the Bill will be marginal, it could still be significant if it leads the courts to shift their own approach to Article 8, ie not because the Bill requires any significant change (it does not, absent the overruling of KO), but because judges autonomously decide that their previous approach was incorrect. 

Indeed, a cynic might suggest that if legally pointless provisions like the amended s117B(5) which will require the giving of little weight to family life formed precariously (eg to what a parent, who always has had leave to remain, has with their British citizen child and spouse) have a purpose beyond public relations it is that they will simply create litigation. The government must know that until the Human Rights Act is repealed or amended a provision which so flagrantly contradicts the Strasbourg jurisprudence will not be followed, but the inevitable litigation will provide an opportunity for the courts to come up with some conservative interpretation of the Strasbourg jurisprudence or equivalent. 

Unlike though in 2012, there do not appear to be any obvious areas where the courts are applying a significantly more generous test than required by the Strasbourg jurisprudence, albeit the tendency for the courts to seesaw between conservative and liberal positions suggests the next move will be in the former direction. One possibility is that the adoption of the new tribunal system (as discussed previously here) will prompt a fundamental recalibration: is the post-Huang approach in which the tribunal must decide for itself whether the Convention has been infringed in accordance with the Strasbourg jurisprudence really workable in a system staffed by non-lawyers, particularly when Parliament is also mandating that regard must be had to a set of different and often contradictory considerations? Instead, could the courts return to the position that Lord Bingham overturned in which essentially the government’s rules and legislation set the requirements for Article 8, with the possibility, perhaps, of only a ‘truly exceptional case’ succeeding outside the rules? This would be better suited to such a system of adjudication, and it has never been clear why Article 8 requires individualised proportionality assessment in the immigration system unlike in respect to, say, criminal record disclosure where decision-making in accordance with inflexible or mandatory rules is Convention compatible. Albeit unlike with the 2012 and 2014 efforts, that the new Bill is so flagrantly at odds with the Strasbourg jurisprudence (particularly, the little and no weight provisions) would make such a shift especially challenging if the Bill becomes law. 

Conclusion

The Bill continues the basic model of immigration and human rights reform since the introduction of the HRA: despite endless tough talk the government and Parliament are simply unwilling to take any concrete measure which require courts to decide immigration cases concerning Convention rights differently. Even the exception, the disapplication provision contained in the Safety of Rwanda Act, did not take effect and was quickly repealed. What is unusual about the new Bill is that the government is expressly continuing an approach which has already failed, since the courts have already shown that the ‘have regard’ device can only strengthen and not reduce the protections provided by the Convention.

But will the courts continue their current approach? When KO and Rhuppiah were decided the UK was at the height of the Windrush scandal, with the country experiencing a moment of ‘national shame’. The political context is now very different. The government might be unwilling to reform the Human Rights Act, but the same might not be true of the judiciary: the Bill’s consequences could still be significant if it prompts the Supreme Court to once again rethink the requirements of Article 8.

Chris Rowe, University of Swansea

(Suggested citation: C. Rowe, ‘Requalifying Article 8: The Immigration and Asylum Bill’, U.K. Const. L. Blog (10th September 2026) (available at https://ukconstitutionallaw.org/))