1. Public interest factors and Article 8 Ben Amunwa 22 July 2015
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2. Statutory framework:
Nationality Immigration & Asylum Act 2002 (‘NIAA 2002’);
New Part 5A added by section 19 Immigration Act 2014 (‘IA 2014’);
Part 5A brought into force on 28 July 2014 by Article 3 of the Immigration Act 2014 (Commencement No 1, Transitory and Saving Provisions) Order 2014.

3. 117A: Application of Part 5A
Subsection (1): Part 5A applies to proportionality test in Article 8 appeals.
Subsection (2): Judges must “have regard” to factors in section 117B (in all cases) and section 117C (in deportation of ‘foreign criminal’ cases).
Subsection (3): defines the “public interest question” as whether an interference with private or family life is justified.

4. 117B: “Public interest” factors in all cases:
Immigration control (subsection (1));
Economic well-being of the UK (subsections (2) and (3));
Private life or relationship with “qualifying partner” established while
unlawfully in the UK (subsection (4));
Private life established while person’s immigration status is
“precarious” (subsection (5));
Children duty for those not liable to deportation (subsection (6));
No public interest in removal where the person has a genuine and subsisting relationship with a “qualifying child” and it would not be reasonable to expect the child to leave the UK (subsection (6)(a)-(b));

5. 117C: Additional factors in deportation cases
Deportation of ‘foreign criminals’ is in the public interest (subsection (1));
The more serious the offence the greater the public interest in deportation (subsection (2));
If sentenced to imprisonment under 4 years, there are 2 exceptions where the public interest does not require deportation:
Exception 1: long residence, integration and very significant obstacles tests (subsection (4));
Exception 2: unduly harsh effect on “qualifying child” or “qualifying partner” (subsection (5));
If sentenced to imprisonment over 4 years, the public interest requires deportation unless there are very compelling circumstances, over and above those in Exceptions 1 and 2 (subsection (6)).

6. 117D: Interpretation
“qualifying child”
a person who is under the age of 18 and who-
is a British citizen, or
has lived in the United Kingdom for a continuous period of seven years or more;
“qualifying partner” 
a partner who—
(a) is a British citizen, or
(b) who is settled in the United Kingdom.

7. 117D: Interpretation “foreign criminal” means a person— (a) who is not a British citizen, (b) who has been convicted in the United Kingdom of an offence, and (c) who— (i) has been sentenced to a period of imprisonment of at least 12 months, (ii) has been convicted of an offence that has caused serious harm, or (iii) is a persistent offender.

8. Commentary
Other factors
Sections 117B and 117C omit mention of many other factors, like delay (see EB (Kosovo)). Wider factors continue to be relevant.
‘Unduly harsh’ vs. ‘reasonableness’
Section 117C(5) imposes a different test to the pre-28 July 2014 Immigration Rules paragraph 399(a). In light of section 71 of the Immigration Act 2014, 117C(5) ought to be “read down” to comply with the children duty.
Exceptional circumstances
Section 117C provides a “very exceptional circumstances” provision for those with sentences of 4 years imprisonment or more, but nothing similar for those under the 4 year threshold who fail under Exception 1 and 2.

9. Chege (section 117D – Article 8 – approach) [2015] UKUT 00165 (IAC), 15 January 2015
“Harmonisation” of the Immigration Rules and IA 2014 [13];
Chege suggests a residual discretion remains, notwithstanding the absence of any provision in Part 5A;
The legal basis for this is found in the Immigration Rules at paragraph 398. The Rules remain a “complete code” [25].

10. Chege continued…
First, ask whether deportation would be in breach of Article 8 through the lens of the Rules and Part 5A. If not, then…
Ask whether there are “exceptional circumstances” is a question to be asked when and only when it has already been decided that removal would not result in a breach of the UK’s obligations under Article 8 [23-25];
While it appears to be a very high threshold, the test only bites if Exceptions 1 and 2 (in section 117C(4) or (5)) do not apply, or if the person is a persistent offender or their offending has caused serious harm [27].

11. Chege continued…
“The correct approach, where an appeal on human rights grounds has been brought in seeking to resist deportation, is to consider
is the appellant a foreign criminal as defined by s117D (2) (a), (b) or (c);
if so, does he fall within paragraph 399 or 399A of the Immigration Rules;
if not are there very compelling circumstances over and above those falling within 399 and 399A relied upon, such identification to be informed by the seriousness of the criminality and taking into account the factors set out in s117B” [33].

12. Dube (ss.117A-117D) [2015] UKUT 90 (IAC), 24 February 2015
“Judges are duty-bound to “have regard” to the specified considerations”, YM (Uganda) applied [21].
Only binds Judges, but Secretary of State may do well to consider 117A – 117D on all Article 8 claims.
Factors in 117B & 117C are not exhaustive, in light of the phrase “in particular” in 117A(2) [23].

13. Dube continued…
Not a radical departure or “override” of previous case law [25]. Part 5A is a further elaboration of the proportionality test from Razgar at question 5.
What matters is substance, not form [26-27].

14. AM (S 117B) Malawi [2015] UKUT 0260 (IAC), 17 April 2015
The purpose of Section 117B(2)-(3) is to re-enforce the weight to be attached to the Immigration Rules that concern financial and language requirements (R (Khairdin) not followed) [15].
Mere fact of fluency or financial independence cannot assist a Claimant unless they meet the relevant language and financial requirements in the Rules [18].

15. AM continued…
Section 117B(5) requires that: “Little weight should be given to a private life established by a person at a time when the person's immigration status is precarious.”
No definition of “precarious” immigration status in Part 5A [20].
Judges use the term to describe “a variety of different situations” [20].
Section 117(5) reflects well-established Strasbourg case law on proportionality and Article 8 [].

16. AM continued…
The Upper Tribunal gave the following definition: “a person’s immigration status is “precarious” if their continued presence in the UK will be dependent upon their obtaining a further grant of leave.” [32]
“…in some circumstances it may be that even a person with indefinite leave to remain, or a person who has obtained citizenship, enjoys a status that is “precarious” either because that status is revocable by the Secretary of State as a result of their deception, or because of their criminal conduct… In these cases the person is well aware that he has either initially, or subsequently, imperilled the status he had, and cannot viably claim thereafter that his status is other than precarious.” [33]

17. Badewa (ss 117A-D and EEA Regulations) [2015] UKUT 329 (11 June 2015)
The correct approach to be applied by tribunal judges in relation to ss.117A-D of the Nationality, Immigration and Asylum 2002 (as amended) in the context of EEA removal decisions is: (i) first to decide if a person satisfies requirements of the Immigration (European Economic Area) Regulations In this context ss.117A-D has no application;  (ii) second where a person has raised Article 8 as a ground of appeal, ss.117A-D applies.

18. Conclusion
Dube clarifies Part 5A. AM creates difficulties for Claimants, particularly:
If private life was established while on a temporary leave (or indefinite leave or citizenship that has been revoked);
Where language and financial independence do not meet the thresholds in the Immigration Rules.
Careful review of immigration status is required.
It may be argued that a Claimant’s status is not in fact “precarious” due to delays by the Secretary of State, for example.

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