Chapter 5 Updates - September 2021

Immigration Law and Human Rights

5.1The relationship between immigration law and human rights

Since the end of the transition period following the UK’s withdrawal from the EU, which ended on 1 January 2021, neither the Dublin regulation nor the EU Charter of Fundamental Rights have applied in the UK legal order. However, as at that date, the EU law on asylum and immigration to which the UK had opted in became retained EU law. To that extent, the impact of the CJEU’s expanded human rights jurisprudence may still be felt in international protection cases.

5.9.1Article 6 and immigration

Before the UK withdrew from the EU, Article 47 of the EU Charter of Fundamental Rights was sometimes invoked where Article 6 is excluded. Since 1 January 2021, the EU Charter of Fundamental Rights is not applicable in UK law as it was specifically not retained.

5.11.5Article 8, the immigration rules, and Part 5A 2002 Act

In NA (Bangladesh) & Ors v Secretary of State for the Home Department [2021] EWCA Civ 953, the Court of Appeal clarified that s117B(6) does not create a presumption in favour of a qualifying child (and therefore their parents) being granted leave to remain. The Court held that whilst there was equally no presumption in the opposite direction, the starting point for a decision-maker in a case where the seven-year child’s parents do not have leave to remain is that it will be reasonable for the child to return with the parents, unless there is other evidence why that would not be reasonable.

5.11.6Settled people

In SSHD v HK (Turkey) [2010] EWCA Civ 583 Sedley LJ said: ‘The number of years a potential deportee has been here is always likely to be relevant; but what is likely to be more relevant is the age at which those years began to run. Fifteen years spent here as an adult are not the same as fifteen years spent here as a child’ (para 35). In Sanambar v Secretary of State for the Home Department [2021] UKSC 30, however, the Supreme Court held that in a case involving a settled migrant who has lawfully spent all or the major part of his or her childhood in the host country, the court is not required to consider the existence of ‘very serious reasons’ to justify expulsion, as a separate condition following consideration of the Üner criteria.