Article 8 of the ECHR and Immigration Cases

Article 8 of the European Convention on Human Rights (ECHR) provides that “Everyone has the right to respect for his private and family life, his home and his correspondence.” Article 8 is a qualified rather than absolute right. The second part of Article 8 sets out a number of circumstances in which public authorities may interfere with the exercise of this right. These can include the purpose of maintaining effective immigration controls.

Article 8 issues may be raised in the course of an application for asylum, or be the basis for a stand-alone application for leave to remain in the UK. They may also be raised in the context of an appeal against deportation or removal.

There have been controversies in recent years about how Article 8 considerations affect immigration case outcomes. There have been some high-profile cases predominantly involving foreign national ex-offenders otherwise liable to deportation who have reportedly been allowed to stay in the UK on the basis of Article 8 rights, although some coverage has been misleading.

In summer 2012 the Government changed the Immigration Rules. It wished to ensure that they reflect the qualified nature of Article 8. A motion to recognise the qualified nature of Article 8 and approve the role of the Immigration Rules in determining Article 8 cases was debated by the House on 19 June 2012. The motion was carried without a vote.

The amended Immigration Rules, in force from 9 July 2012, specify the circumstances in which leave to remain in the UK will usually be granted on Article 8 grounds, and provide for a longer route to permanent settlement (10 years) for persons who are granted permission to stay on these grounds. ‘Foreign criminals’ are not the only type of case affected by the new rules.

The courts have subsequently held that it is legitimate for the Immigration Rules to make specific provisions for how Article 8 considerations are to be applied in different types of case. In October 2013 the Court of Appeal determined that the amended Immigration Rules provide a “complete code” for assessing Article 8 and the deportation of foreign criminals.

This note provides background and context to recent debates surrounding Article 8 in immigration cases, and an overview of the practical implications of the July 2012 Immigration Rules changes.

Published on on 18 October 2013 | Standard notes SN06355