Article 8: Where do you Stand?

Article 8 of the European Convention on Human Rights (ECHR) ensures your ‘right to respect for private and family life.’  However, it is not an absolute right which means that the government can limit or interfere with it in certain specific situations, such as for the prevention of crime. This is an area of human rights law which has become increasingly contentious and attracted more media coverage than perhaps any of the other fundamental freedoms protected by the ECHR.  Recently in the UK, the Leveson inquiry has looked at the relationship between Articles 8 and 10 in light of the hacking scandals which have arisen in the popular press. 

Article 8 is often condemned as being a tool which allows illegal immigrants or those who have committed a crime in the UK to avoid deportation, costing British taxpayers thousands of pounds in legal fees in the process.  But can it really be as simple as this?  We have been debating the merits of both sides to these arguments recently, and invite you to join the discussion.

Should Article 8 should be interfered with in cases of illegal immigrants / dangerous criminals?

Recently, we heard Theresa May, the Home Secretary, denounce the Human Rights Act for allowing the following situations to exist: “The violent drug dealer who cannot be sent home because his daughter – for whom he pays no maintenance – lives here.  The robber who cannot be removed because he has a girlfriend.  The illegal immigrant who cannot be deported because – and I am not making this up – he had a pet cat.’  May was left looking rather foolish when it was quickly pointed out that in relation to her third example involving the pet cat, the reason the Bolivian man in question (who did not enter Britain illegally and was not a criminal) was allowed to remain in the UK was because UKBA had failed to follow its own guidance in relation to unmarried couples who had been together for over 2 years.  You can view the judgment here

We read about European Court of Human Rights cases such as the one settled in September of this year, which concerned a Nigerian aged 25, who was fighting deportation on grounds which included violation of his right to a family and private life.  He had committed a serious crime aged 15 after entering the UK, and had served his time in detention and on probation.  The court found that there would be a violation of Article 8 should this man be deported.  Whilst this may seem to merely prove the arguments put forward by Theresa May and papers such as the Daily Mail, on a close reading of the judgment one can understand the justification for allowing this man to stay.  Yes, he committed a grave crime and should rightly be punished for it.  But he was a minor at the time, and had never re-offended, he demonstrated significant remorse for the offence and attempted to turn his life around and become a contributing member of British society.  Should, then, this man be vilified and expelled from our country?  Or should he be allowed to stay with his family and continue to work on the progress he has made?  It is a difficult question and all too easy to condemn deportation cases such as these which are overruled on human rights grounds, without attempting to understand the detail and context of the facts themselves.

When assessing whether Article 8 can be interfered with, it is a question of proportionality for judges to decide.  Is the proposed interference proportional, taking all the circumstances into account?  The need to maintain a democratic society in the UK, free from those who are a danger to that society through their use of crime, must be balanced against the individual’s right to reside with his family.  It is a difficult question for judges to answer and they must take a full view of the facts before reaching a decision.  In the case of UE (Nigeria) and Ors v SSHD [2020] EWCA 975 it was held  that judges may take into account whether the individual has made a contribution to British society, for example through work, establishing a business or paying expensive student visa fees. 

Article 8 and the Points Based System

Since the introduction of the Points Based System (PBS) to control migration into the UK, we have frequently seen visa applications being rejected, not because the applicant is a criminal or fails to meet one of the fundamental principles behind the PBS, but due to minor technical or administrative failures.  It is extremely distressing to tell a main applicant that their spouse cannot join them in the UK because they do not tick a required box.  In appeals against decisions such as these it will depend on the facts, the importance of the PBS requirement the applicant fails to meet and the strength of his Article 8 ties, as to whether it can be overturned.  Pankina was an important case in this area.  UKBA and the SSHD were asked to refrain from using policy guidance to modify immigration rules, since policy guidance has not been approved by Parliament.  The decision stated that consideration must be given to the importance of the requirements of the Rule that the applicant cannot satisfy.  For example, should an applicant fall only “marginally or momentarily short of a financial criterion which in itself has no meaning, the Home Office should be more wary of rejecting the application outright.  However, the case also discussed Article 8 in relation to the PBS in some detail, and the court rejected the argument that Article 8 was off limits in cases such as these. 

Pankina was decided in 2010 and has been interpreted in varying ways ever since.  However, what does seem clear, especially in recent months, is that judges are tending towards a more lenient approach in their dealings with PBS cases and they are allowing more scope for use of Article 8 to justify overturning refusals by UKBA.  This is clearly inspired in part by the fact that the Immigration Rules are becoming so complex that they appear to be designed to ‘catch people out’ and prevent as many people as possible from being allowed entry into the UK.

Clearly, the use of Article 8 in immigration cases is something which inspires strong opinions, both for and against, whenever it is discussed.  We will be closely following the next developments in this challenging area of immigration law.  Will judges become even more lenient in their approach to Article 8 and deportation or PBS cases?  Or will there be a turning of the tide? Leave your comments and views below.




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