Article 8 of ECHR: Right of Private & Family l...
Article 8 of ECHR: Right of Private & Family life
The European Convention on Human Rights 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 boundaries of the countries belonging to the Council of Europe (There are 46 member countries including 26 member states of European Union).
The ECHR provides a list of fundamental human rights each of them enshrined in separate Articles of section 1 while other sections deals with the establishment of European Court of Human Rights and miscellaneous provisions.
Article 8 deals with the right of private and family life of every person living within the premises of the Council of Europe and is more relevant in relation to the Immigration decisions taken by the public authorities of the member states.
- What is Article 8 of the European Convention on Human Rights?
- Every one 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 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.
- Who can claim right to live / remain in a member state on the basis of establishment of right of 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 right to remain in the UK on that basis alone no matter whether he qualifies under the domestic law to remain in the UK or not. The person can be:
- An overstayer
- Illegal entrant
- Asylum seeker
- Failed asylum seeker
- Any one having no claim under the Immigration rules or EEA regulations to live and remain here in the UK.
- Criteria for assessing a valid claim under Article 8A family life can be established in the following relationships:
- Close family relations
- Husband / wife or Civil Partnerships
- Unmarried and Same sex Partners (there is no requirement for them to have at least 2 years of relationship as they are required to do so to qualify under the Immigration rules).
- Parent / Child / Adopted Child
- Wider Family relations
- Grandparents/ Grandchildren
- Uncles / Aunts
- Nephews / Nieces
- Adult Siblings
- Parents / Adult Children
- Foster Families
- Has the applicant established family or private life in the UK?
- Will refusal / removal interfere with that family life – are there insurmountable obstacles to the family enjoying family life elsewhere?
- If there is interference with family life, is it in accordance with the law?
- Is the interference in pursuit of one of the permissible aims set out under Article 8(2)?
- Is the interference proportionate to the permissible aim?
- Nature of relationship
- Are there any minor children in the relationship?
- Frequency of contact with the relatives
- Is there any dependency involved in the relationship?
- Applicant`s and his family members` countries of nationality & immigration status.
- Family members` ties with the UK
- Applicant`s ties with his country of origin
- Are there any health or other welfare issues involved?
- Availability of entry clearance facilities in the country of origin
- Has there been a delay in determining an earlier immigration application?
- Would there be any effects on the family living in the UK of the removal of the applicant?
- Close family relations
- ConclusionOn the face of it, Article 8 may appear to be another reason to stay in the UK on the basis of establishment of private and family life, but in fact it is only in “truly and exceptional” cases that applicants are permitted to remain in the UK.In addition to the Human Rights Act 1998, Judicial precedents has been another source of law to interpret, set, explain and enforce the procedures that have to be followed while considering Human rights claims. It has not ended yet and is still undergoing further developments that would make the vague procedures much clearer.