UK Bill Would Give 'No Weight' to Family Life Built During Unlawful Stay

Clause 19(4) of the UK's new Immigration and Asylum Bill would require decision makers to give "no weight" — not "little weight" — to private or family life established while a person was in the United Kingdom unlawfully, had obtained leave by deception, or was in serious breach of a condition attached to their leave.

By Zaki Sarraf's analysis, published by the site, the change targets section 117B of the Nationality, Immigration and Asylum Act 2002. The government justifies reform by arguing that Article 8 of the European Convention on Human Rights allows "high numbers of people" who would not otherwise have the right to live in the UK to come or remain, while frustrating removal of those residing unlawfully.

What does the Bill change?

Currently, judges must give "little weight" to private life, or a relationship with a qualifying partner, formed while a person was in the UK unlawfully. Clause 19(4) hardens that instruction to "no weight" in three situations:

• the person was in the UK unlawfully when the private or family life was established;
• the person obtained leave by deception;
• the person was in serious breach of a condition attached to their leave.

The wording sounds absolute. In practice, the position is more ambiguous.

How far can Parliament prescribe the Article 8 balance?

Parliament routinely shapes Article 8 weighting. Section 117B(1) already states that maintaining effective immigration control is in the public interest, and sections 117B(4) and (5) identify circumstances given less weight.

But there is a distinction between telling courts how much weight to give immigration control and telling them that genuinely existing private or family life should count for nothing. Article 8 requires a proportionality assessment, weighing interference with private or family life against the public interest. A statutory rule directing that one side of the balance counts for nothing risks determining part of the outcome in advance.

The Supreme Court's decision in Rhuppiah v Secretary of State for the Home Department [2018] UKSC 58 is central. Lord Wilson held that decision makers retained flexibility, because section 117A(2)(a) requires courts only to "have regard" to the "little weight" instruction rather than apply it in every case. Section 117A prevented the weighting from operating as a statutory "strait-jacket" producing outcomes inconsistent with the Convention.

Clause 19(4) leaves section 117A(2)(a) intact. Courts would take the "no weight" provision into account but would not be required to apply it in every case. If courts instead read "no weight" as leaving no room at all for the relevant life to count, the provision risks creating the very strait-jacket Rhuppiah avoided.

The clause also raises difficult questions in cases involving children, where a "no weight" direction may sit uneasily with the section 55 duty on children's welfare in the Borders, Citizenship and Immigration Act 2009.

In Sanambar v Secretary of State for the Home Department [2021] UKSC 30, the Supreme Court observed that the UK's margin of appreciation may be exercised through legislation, the Immigration Rules or judicial decisions, but remains "subject to European supervision".

Is Article 8 being misreported?

A Bonavero Institute of Human Rights study analysed 379 media reports mentioning the Convention in the first half of 2025. More than 75% focused on immigration control, with "widespread reporting" of Article 8. It found three recurring forms of misreporting: reports did not make clear a decision had been overturned; they presented isolated facts as determinative; and they misdescribed judges' assessment of evidence.

The "chicken nuggets" case is one example. An Albanian man was widely reported as allowed to remain because his son disliked foreign chicken nuggets — a detail that was neither the legal test nor determinative. A pet cat was likewise presented as though it prevented removal.

How demanding is the existing law?

In IA v Secretary of State for the Home Department [2025] EWCA Civ 1516, the Court of Appeal reaffirmed that for adult relatives, Article 8 family life requires "additional elements of dependence" beyond normal emotional ties. Close contact, financial assistance and even real, committed or effective support are not enough by themselves.

The First-tier Tribunal allowed 42% of human rights appeals determined between April and June 2026 — a category wider than Article 8 alone. The government's policy paper cites an estimated 76,500 in-country grants on Article 8 family and private life grounds in 2025, but that figure is a volume of grants, not a success rate.

The risk, the analysis concludes, is that the government is tightening a legal test in response to a caricature of Article 8 rather than the law as courts actually apply it. Readers should follow the Bill's progress through Parliament and the official Immigration and Asylum Bill text for binding detail.