Article 8 of ECHR: Right of Private & Family l...

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?
  1. Every one 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.
• 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:
  1. 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
  2. Wider Family relations
     • Grandparents/ Grandchildren
     • Uncles / Aunts
     • Nephews / Nieces
     • Adult Siblings
     • Parents / Adult Children
     • Foster Families
  Establishment of family life is generally presumed among close relatives while in regards to the wider family relations, the relationships mentioned above MAY fall within the scope of family life depending upon the strength of the emotional ties and dependency, if there is any.The Home office normally uses a five-step criteria in order to assess whether the applicant has established his private or family life in the UK and any efforts to remove him to his country of origin would amount to breach of his human rights that is:
  • 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?
  If the applicant can address the above-mentioned issues separately by providing directly or indirectly relevant documentary evidences in his support and that makes his case “truly exceptional”, only then he may be granted leave to remain in the UK. In a case decided by the IAT, the tribunal has made it more clear by stating that “where an individual falls outside the specific requirement or limits of the otherwise applicable rules or policy, that is a very clear indication that removal is proportionate. It is not for the judicial decision maker, except in the clear and truly exceptional case, to set aside the limitations set by the executive…”.This case in fact serves a guideline to the judicial decision makers and the Home office to assess whether an individual can be removed despite of him having established private and family life in the UK.There are some factors that may be taken into account in assessing “truly exceptional” circumstances of an individual. Some of them are:
  • 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?
  The list is not exhaustive and some other factors that may be considered as relevant in some cases can be totally irrelevant in other cases. The threshold is however very high and difficult to achieve unless there are genuinely “truly and exceptional” circumstances.There may also be a case when the applicant can claim that on being removed to his country of origin, he might have to face circumstances that would breach his private and family life. The House of Lords has set an example of such cases in a starred case “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”.Again, the standard of proof is very high and it is only in rare cases that can be proved that refusal or removal of a person would invoke Article 8 of the ECHR.
• 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.