Section 117B Public Interest Considerations Explained
When considering immigration matters involving Article 8 (ECHR), one of the most important factors that decision-makers, courts and tribunals will take into account when reaching their conclusion is whether any of the issues raised run counter to the ‘public interest’. This concept is defined under S.117B of the Nationality, Immigration and Asylum Act 2002 and comes into play when a court or tribunal has to consider whether an interference with an applicant’s Article 8 rights is proportionate. As such, understanding what falls under ‘the public interest’ will be very significant when attempting to establish any factors which might weigh against an individual’s Article 8 rights in the context of this proportionality exercise. Therefore, in the following article, we will provide an overview of the different factors that form part of these ‘public interest’ considerations and explore how they interact with Article 8 (ECHR).
Background to S.117B:
S.117B was originally inserted into the Nationality, Immigration and Asylum Act 2002 by Section 19 of the Immigration Act 2014. The purpose of these provisions appears to be an attempt to direct, and to an extent limit, the way in which courts and tribunals consider Article 8 in an immigration context, specifically the factors which must be considered when a court or tribunal conducts the balancing exercise between an individual’s Article 8 rights and factors which pull against that.
As the explanatory notes for the Immigration Act 2014 states, the intention here was that the “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 [Emphasis added]”.
Similarly, the Home Office’s ‘Family Migration’ Consultation paper, published in July 2011, also outlines the policy objectives operating in the background of these provisions, namely that:
“…the government has a responsibility to set out a framework for where and why the wider public interest in protecting the public and controlling immigration justifies rational and proportionate interference in the exercise of the right to respect for private and family life…”
“Of course, those with a legitimate right to come here must still be able to do so. But we need to crack down on abuse of the family route and to tighten up the system.”
“We do not suggest that simply because a family could live elsewhere that they must do so: that would be closing the door to much family migration, which is not our objective. But we do believe that Article 8 enables us to impose requirements on applicants for family migration as long as those requirements serve a legitimate public interest and are proportionate.”
The provisions of S.117B:
Section 117B provides that the following are public interest considerations which are applicable in all cases:
- Maintaining effective immigration controls;
- Preventing burdens on the taxpayer;
- Promoting integration;
- Protecting the rights and freedoms of others.
Thus, in line with the policy objectives which we explored above, we can arguably see that these provisions do indeed “tighten up the system” by directing courts and tribunals as to how they must consider the public interest, and what that phrase encompasses in an immigration context. The attempt to limit Article 8, as was also alluded to above, can also be seen through these provisions. For example, S.117B(4) and S.117B(5) explicitly outline scenarios where “little weight should be given to a private life”, namely where an individual’s immigration status in the UK was precarious or unlawful (a topic which has been explored in previous blog posts). Again, this is consistent with Home Office policy to “crack down on abuse of the family route” by limiting the ability of individuals to rely on private life ties, formed at a time when their status in the UK is deficient in some way, as a means of circumventing immigration rules.
How does S.117B interact with Article 8?:
As alluded to earlier, the provisions of S.117B arguably represent an attempt to direct how courts and tribunals should consider and apply Article 8 (ECHR) and, in particular, the factors which should be taken into consideration when making that assessment. A detailed discussion of Article 8 is largely outside the scope of this article, and in any event has been addressed in previous blog posts. For our purposes, it is sufficient to say that Article 8 is a qualified right, found under the provisions of the ECHR, which protects an individual’s right to family life and private life. As it is a qualified right, Article 8(2) does allow for inference with an individual’s private or family life in certain circumstances.
In previous decisions, the court has dealt with the question of whether the provisions of S.117 more broadly are compatible with Article 8 (ECHR). The conclusion from these judgments seem to be that these statutory provisions are not, in themselves, in breach of Article 8. For example, the court in NE-A (Nigeria) v SSHD (2017) held that:
“Part 5A of the 2002 Act, by contrast, is primary legislation directed to tribunals and governing their decision-making in relation to Article 8 claims in the context of appeals under the Immigration Acts. I see no reason to doubt what was common ground in Rhuppiah and was drawn from NA (Pakistan), that sections 117A-117D, taken together, are intended to provide for a structured approach to the application of Article 8 which produces in all cases a final result which is compatible with Article 8”
Likewise, the decision reached in Rhuppiah v SSHD (2016) also raises important considerations in regards to how the provisions of S.117B interact with Article 8. In that decision, the court held that:
“Where Parliament has itself declared that something is in the public interest – see sections 117B(1), (2) and (3) and section 117C(1) – that is definitive as to that aspect of the public interest.
But it should be noted that having regard to such considerations does not mandate any particular outcome in an Article 8 balancing exercise: a court or tribunal has to take these considerations into account and give them considerable weight, as is appropriate for a definitive statement by Parliament about a particular aspect of the public interest, but they are in principle capable of being outweighed by other relevant considerations which may make it disproportionate under Article 8 for an individual to be removed from the UK.”
Both of these cases arguably reveal some important details regarding the operation of S.117. Firstly, in line with the Government and Home Office policy detailed above, S.117B does indeed appear to have achieved its intended effect of defining, and to an extent limiting, the range of factors which can be considered as falling within the ‘public interest’. Thus, by placing these factors on a statutory footing, the public interest considerations under S.117B are, as commented on in Rhuppiah, “definitive as to that aspect of the public interest”.
Secondly, and perhaps most importantly in the context of conducting a balancing exercise under Article 8, it should be emphasised that even though statute has determined what is to be considered as falling under ‘the public interest’, and has mandated that courts and tribunals must have regard to these factors (as per S.117A(2)), this does not necessarily mean that the balancing exercise is a foregone conclusion. Indeed, as was quoted above, the court in Rhuppiah held that these ‘public interest considerations’ “are in principle capable of being outweighed by other relevant considerations”. Therefore, in each individual case, it will still be important to attempt to advance arguments and evidence demonstrating the strength of an applicant’s Article 8 ties, whether they be in terms of their private life or family life in the UK.
As will hopefully have been seen from this blog post, the public interest considerations detailed under S.117B will form a crucial part of the balancing exercise conducted under Article 8 when courts or tribunals are called upon to determine a decision under the Immigration Acts. Given that courts and tribunals must have regard to these factors, it is therefore incredibly important to be aware of these provisions, their intended purpose, and their effects. It is worth re-emphasising at the close that it is entirely possible for sufficiently strong and compelling evidence regarding an applicant’s private or family life ties under Article 8 to be advanced, and indeed, to tip the proportionality exercise in an applicant’s favour. As always, doing so will require careful examination of the specific facts of each individual case.