3 UK immigration law and the HRA
The rights in the ECHR that are most relevant to immigration law are Articles 3 (prohibition of torture) and 8 (respect for family and private life). Here’s a summary of some key ECtHR case law in relation to immigration matters:
The first key principle is that the ECHR does not guarantee the right of an alien to enter or reside in a particular country (see para 39 Boultif [2001] - 54273/00 [2001] ECHR 497). […]
A State is entitled, as a matter of international law and subject to its treaty obligations, to control the entry of aliens into its territory and their residence there (para 54 Uner v Netherlands - 46410/99 [2006] ECHR 873).
The ECtHR cases then recognise that States enjoy a certain margin of appreciation when balancing the competing interests of the individual and of the community as a whole (para 68 Nunez v. Norway – 55597/09 [2011] ECHR 1047).
Boultif and Uner form part of a line of case law concerning the deportation of foreign criminals where the ECtHR has consistently recognised that the prevention of disorder and crime can be a justification under Article 8(2) for the expulsion of foreign criminals.
A separate line of ECtHR case law including Chandra v. Netherlands – 53102/99 (13 May 2003), Rodrigues da Silva v. The Netherlands – 50435/99 [2006] ECHR 86, Osman v. Denmark – 38058/09 [2011] ECHR 926 (para 58), Nunez (para 70) and Antwi v. Norway – 26940/10 [2012] ECHR 259 (paras 87–93) confirm that immigration control is itself a legitimate aim under Article 8(2). This latter case law is recognised domestically as being based on immigration control being mainly a means of protecting the economic wellbeing of a country (see para 18 of ZH (Tanzania) [2011] UKSC 4 and Elias LJ para 76 Treebhowan [2012] EWCA Civ 1054).
The extract from the Home Office memorandum mentions several cases and citations, from both the ECtHR and UK courts. Citations – that is, references to decisions in court cases – are the method by which you can locate a particular judgment or paragraph of a judgment. For UK cases, citations indicate the court where the case was heard, the parties to the case and a reference to the case report (Figure 1).
Citations for judgments and decisions from the ECtHR generally follow the pattern: name of case (in italics), application number, paragraph number (for judgments), abbreviation of the European Court of Human Rights (ECHR), year and number of volume.
Activity 2: Immigration law and human rights
Do the following examples involve a human rights element?
- An individual appealing a refusal of their asylum claim.
- An individual is ‘appeal rights exhausted’. Their right to family/private life may form the basis of your further submissions to be considered as a fresh claim.
- An unaccompanied child who is nearing 17½ years old.
- An individual is applying as a partner of someone in the UK but does not meet minimum income requirements.
Answer
- Yes, this example has a human rights element. The individual could raise their right to family/private life at that point.
- This also has a human rights element, but it may be the only basis of further evidence, or they may be submitting evidence about their family/private life in the UK as well as new evidence about their asylum claim.
- Again, this has a human rights element. They may want to argue that their family/private life in the UK means that their limited leave to remain should be extended.
- As with the previous examples, this has a human rights element, but they may need to demonstrate the strength of their family/private life in the UK if they are applying as a partner of someone, especially if they do not meet the rules regarding minimum income.
As you have seen, the concept of ‘private life’ covers a wide range of situations, including if an individual has lived in the UK for a long time, or if they are 18–24 years old and has lived continuously in the UK for more than half of their life. If someone requires medical treatment that is not available to them in their country of origin, they may seek to apply for the right to stay based on their right to private life.
Immigration advisers need to be aware of all the options that a client could explore. However, this is balanced with the requirements for evidence, and being aware of how long applications can take to process. Any immigration application will be a stressful time for a client.
In relation to immigration law, individuals have successfully invoked Articles 2 (right to life), 3 (prohibition of torture), 5 (right to liberty and security), 6 (right to a fair trial) and 8 (right to respect for private and family life) of the ECHR to be granted leave to remain in the UK.