Article 8 of ECHR: Right of Private & Family life
The European Convention on Human Rights (ECHR) has defined, and deals with, a number of basic rights that are guaranteed to every individual - irrespective of their race, religion, nationality or membership of a particular social group - who resides within the countries belonging to the Council of Europe (There are 46 member countries including the 26 member states of the European Union).
The ECHR provides a list of fundamental human rights and each of them is enshrined in separate Articles in section 1 of the ECHR, whilst the other sections deal with the establishment of the European Court of Human Rights and other miscellaneous provisions.
Article 8 broadly defines the right to private and family life of every person living within the borders of the Council of Europe countries and is relevant to all immigration decisions taken by the public authorities of the member states.
Article 8 of the European Convention on Human Rights:-
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. 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 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.
Article 8 is therefore a qualified right, i.e. interference can be justified and where it is justified there will be no violation of this right.
Who can claim a right to live in a member state on the basis of the establishment of a right to private & family life?
Any person who has established his private and family life successfully in the UK, and can provide evidence to that effect, can claim the right to remain in the UK on that basis alone despite whether or not he qualifies under domestic law to remain in the UK. Such a person could be:
Criteria for assessing a valid claim under Article 8
A family life can be established in the following relationships:
Close family relations
Wider Family relations
Establishment of family life can generally be presumed among close relatives where children are involved (although the relationship would still need to be evidenced) whilst in respect of wider family relations and relations between adults, the relationships mentioned above may fall within the scope of family life depending upon the strength of the emotional ties and dependency. In respect of a family unit where one family member faces removal the rights of all the affected family members as a whole must be taken into account.
The Home Office normally uses a five-step criteria (based on the questions to be asked in Article 8 cases set out in the House of Lords case of Razgar) in order to assess whether any removal of an individual to his or her country of origin would amount to a breach of his or her Article 8 human rights:
In practice it is simply necessary to demonstrate the existence of a family/and or private life and that removal would not be proportionate (or reasonable in all the circumstances). The House of Lords in Huang made clear there is no test of exceptionality (as was previously thought to be the case) but that proportionality is a balancing exercise, i.e. the family/private life of the individual versus the legitimate interests of immigration control: “In an article 8 case where this question is reached, the ultimate question for the appellate immigration authority is whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by article 8. If the answer to this question is affirmative, the refusal is unlawful and the authority must so decide.”
If the applicant can provide a full evidential picture of his or her family and/or private life and the likely consequences of removal and show that the consequences of any removal would seriously damage that family/private life then he or she may be granted discretionary leave to remain in the UK, usually for a period of three years.
Many and varied factors can be taken into account in assessing proportionality. For example:-
This list is far from exhaustive and each case much be considered on its own facts.
There may also be a case when the applicant can claim that on being removed to his country of origin, he might face circumstances there that would violate his Article 8 rights even though he may have established no significant family or private life in the UK, i.e. where the potential violation is not directly caused by the removing state. The House of Lords considered such cases in the case of Ullah & Do where it was held that:
"In order to rely upon a foreign breach of ECHR articles other than Article 3, a claimant would have to show that he would risk suffering a "flagrant denial or gross violation" of such rights in the receiving state".
The standard of proof is very high and it is only in rare cases that it can be proved that the refusal or removal of a person would invoke Article 8 of the ECHR extra-territorially.
Article 8 is relevant to all immigration decisions to a greater or lesser extent and, where a person has no right to enter or remain in the UK under the Immigration Rules or the EEA Regulations, Article 8 might provide a basis of stay. The UK has also incorporated the use of Article 8 and how it will be used to decide client’s cases under Appendix FM of the Immigration Rules.
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