New law will impact how the right to family and private life is applied by judges
On the 30th of June 2026, the government published their new Immigration and Asylum Bill. The bill is still working its way through Parliament. It has gone through its second reading in parliament and will move to the Committee Stage for detailed scrutiny later in the year.
The bill introduces a number of significant changes, not least of which is the creation of a new appeals body, called the Immigration and Asylum Appeals Authority (IIAA), which will ultimately take over from the First-tier Tribunal (Immigration and Asylum Chamber) in deciding asylum and immigration appeals. However, this article focuses on the way that the bill proposes to change the way that judges interpret the right to respect for family and private life.
In 2014, under a Conservative government, an act was passed which introduced within statute provisions that judges had to consider when interpreting the right to respect for family and private life under Article 8 ECHR. This was a novel approach by the government as traditionally it had been left to judges to shape how the law developed in interpreting Article 8 cases. The law required that judges must take into consideration a number of ‘public interest’ factors when deciding cases where it was being argued by an individual that their removal would breach their right to family and private life. The law, which was set out in Section 117A – 117C of the Nationality, Immigration and Asylum Act 2002, directed judges to consider factors such as:
- Whether someone was able to speak English; and
- Whether someone was financially independent.
In addition, if someone had formed their ties in the UK at a point where their immigration was unlawful or precarious, then only little weight would be given to those ties.
In the new immigration and asylum bill published, the government are making additional amendments to the rules that need to be considered by judges deciding these cases.
Amendments to which family relationships are protected
The bill for the first time seeks to define what type of family relationships should be protected. The provisions confirm that the following relationships are protected:
- A person’s spouse, civil partner or partner
- A person’s child where they are under the age of 18
- A person’s parent, where the child is under 18 (although the bill confirms that if they are not living together there is only a family life if the parent has a subsisting parental relationship with the child)
The bill confirms that outside of these relationships then a person does not normally have a family life with another adult unless there is an additional element of dependency beyond normal emotional ties. This is reflective of the current caselaw, but the bill does also go a bit further in setting out what will not be considered to constitute additional elements of dependency. The following will NOT be enough on their own:
- If a person is financially dependent
- If the person has a physical or mental illness unless that person is so incapacitated they require constant care and support, and that it is the other person providing that support and no adequate support would be available for that person otherwise
- If they rely on the person for emotional support
- If they live in a country affected by war, conflict or instability and there are concerns over that person’s welfare.
Public Interest Considerations
The new laws introduce some additional factors which may count against a person when considering whether their presence is in the public interest. These include:
- Whether that person will be able to house themselves without reliance on state support; and
- Whether the person is reliant on public services, in particular health or social care services, in the long term.
These factors are likely things that would have been considered by judges already but there is now an explicit requirement that they take them into account in reaching decisions.
What ‘weight’ applies to someone’s family or private life when unlawfully present
A new provision which is likely to have a big impact however is the way that the family or private life of someone who is unlawfully present is treated.
The 2014 rules required that ‘little weight’ was given to the private or family life of someone who was unlawfully in the UK. This meant it would be difficult for someone to succeed if they had established their family / private lives at a time when they were unlawfully present, but at some point, where someone could show very strong family or private lives, the scales would tip in their favour and they could succeed in a claim.
However, the new provisions now state that ‘NO weight’ should be given to a family or private life of someone unlawfully present. In addition, ‘no weight’ will also apply where someone obtained their permission through deception or where there is a serious breach of a condition attached to their leave to enter or remain.
This is a remarkable change and could result in some draconian outcomes. For example, someone may have entered the UK as a child and used deception at that time to obtain status. They may have then lived in the UK for 30 years, had British children in that time, had a positive employment record, and been otherwise of good character whilst an adult. The provisions however suggest that someone in that situation would have no weight given to their private and family life. This does seem a considerable restriction on the balancing exercise that judges normally carry out and it will need to be seen how those provisions will be applied in practice to ensure that the UK is still complying with its international obligations.
Little weight applied to family life of people with precarious status
Under the previous provisions, only little weigh as given to someone’s private life whilst they had some form of immigration status but that status was precarious. The courts have in broad terms interpreted ‘precarious’ as meaning anyone who does not have indefinite leave to remain.
Under the new provisions, little weight will also be attached to any family life established during this time as well, therefore broadening the number of cases which will be affected.
Treatment of children
It was accepted under the 2014 changes that it would not be in the public interest to remove a person who had a parental relationship with a child, and it would not be reasonable to expect the child to leave the UK.
The new provisions however limit when it will be considered unreasonable to expect a child to leave the UK. The new provisions state this only applies if:
- The child would not receive any education in the country where they would be relocated to;
- There are very significant obstacles to the child’s ability to adopt or integrate in the new country;
- The child’s relocation would otherwise have a very significant and long-standing adverse effect on the child.
This appears to be a much more restrictive approach to interpreting whether it is reasonable to expect a child to relocate and may be difficult to reconcile with the judge’s obligation to give primary consideration to the best interests of children.
OTB Legal represent many individuals who are relying on the right to respect for family and private life under article 8 ECHR within their application or in an appeal. If you require assistance please schedule an appointment with one of our experienced advisors.
