4 UK immigration law and the ECHR
A number of immigration cases involving UK public authorities have reached the ECtHR, which has been clear that there is a balance between the effective protection of human rights and the Contracting States’ right to regulate migrant flows. Here you consider a very brief overview, because the detail is beyond the scope of this course.
You were introduced to the ECHR’s articles in Section 1. Several articles can be relevant to immigration cases, depending on the facts of an individual’s circumstances. The ECtHR hears cases from all Contracting States, so the decision in a case against one Contracting State will be relevant to others.
Article 3 (which prohibits torture and inhuman or degrading treatment or punishment) prevents a State bound by the ECHR – in the Convention called a ‘High Contracting State’ – from returning an individual to another country where they face a risk of being subjected to such treatment. In practice, this is rare – but once the risk of Article 3 mistreatment has been established, it is an absolute bar to return. However, the threshold is high: an individual will need to prove that the situation that they would face on return would be inhuman or degrading, and that there is a specific threat to them personally. A general threat, or being in an unwelcome or harsh environment, would not be enough.
Articles 2 and 3 are absolute rights, where no interference can be justified. Article 8 (the right to private and family life) is a qualified right, meaning that interference can be justified, and where it is justified, there will be no violation of this right:
Article 8: Right to respect for private and family life
- Everyone has the right to respect for his private and family life, his home and his correspondence.
- There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Typically, any individual who has established their private and family life successfully in the UK, and who can provide evidence to that effect, can claim the right to remain in the UK on that basis alone, regardless of whether they qualify under domestic law to remain in the UK. Such an individual could be:
- an overstayer
- an illegal entrant
- an asylum-seeker
- a failed asylum-seeker
- anyone with no claim under the Immigration Rules or EEA regulations to live and remain here in the UK.
Activity 3: Respect for family life
Look at the following list. Which words or phrases do you think could be key in a discussion about Article 8?
- economic wellbeing of the country
- expulsion
- extradition
- in accordance with the law
- interference
- national security
- necessary in a democratic society
- positive obligations
- prevention of crime
- prevention of disorder
- public authority
- public safety
- respect for family life
- respect for home
- respect for private life
- safeguards against abuse.
Discussion
The primary purpose of Article 8 is to protect against arbitrary interferences with private and family life, home, and correspondence by a public authority. A public authority may be able to justify an infringement of the rights defined in Article 8 if it is ‘in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others’ (ECtHR, 1950).
All of the words and phrases on the list – along with several others that were omitted – are key words in relation to Article 8. Key words for Article 8, and other articles of the ECHR [Tip: hold Ctrl and click a link to open it in a new tab. (Hide tip)] , can be found on the ECtHR website (ECtHR, n.d.).
You may have noted that there is a right to non-discrimination under Article 14. This is not a free-standing right, because it must be discrimination that relates to the exercise of one of the other ECHR rights. Article 14 is very broad in its scope, and can be used to challenge discrimination on any grounds: for example, to challenge differential return policies that affected Article 8 rights in relation to different ethnic or national groups, if that difference could not be objectively justified.
Here’s an example of a case from the UK (AA v. the United Kingdom, application no. 8000/08) that went before the ECtHR:
The Strasbourg Court ruled unlawful the deportation of a Nigerian who had settled in the UK when aged 13 and who was convicted of rape of a 13-year-old girl when he was aged 15. He was sentenced to four years in a Young Offenders’ Institution but was released on licence for good behaviour after serving one year and 10 months. A deportation order was issued, under the Immigration Act 1971, which permits the Secretary of State to order the deportation of a person who is not a British citizen if it is ‘conducive to the public good’.
The applicant appealed successfully against the deportation order to the Asylum and Immigration Tribunal, but the deportation order was confirmed by a tribunal decision two years later.
The ECtHR accepted in AA that the proposed deportation was both legally prescribed and was legitimately aimed at preventing disorder or crime. The Court gave significant weight to the seriousness of the offence, but also took account of the fact that he was a minor when he committed it. It noted that he had spent almost half his life in the UK. Seven years had passed since he had been released and although he had exhausted his appeal rights in January 2008, no steps had been taken in respect of his deportation until September 2010. Since committing the offence in 2002, the applicant had not committed any further offences. He had subsequently obtained several qualifications, including an undergraduate and postgraduate degree, and had worked for a local authority since 2010. His probation officer and the Asylum and Immigration Tribunal had considered the risk of his reoffending to be low. The Government did not raise any concern about the applicant’s conduct in the seven years since his release from prison. He continued to live with his mother and had other close family ties in the UK. For these reasons, the Strasbourg Court unanimously found that deportation would be disproportionate and therefore in violation of Article 8 of the Convention.