Article 1 - obligation to respect human rights
Article 2 - the right to life & the prohibition of arbitrary deprivation of life
Article 3 - the prohibition of torture, inhuman and / or degrading treatment / punishment
Article 4 - prohibition of slavery
Article 5 - the right to liberty & security of the person
Article 6 – the right to a fair trial
Article 7 - no punishment without law
Article 8 - the right to respect for private and family life, home and correspondence
Article 9 - right to freedom of thought, conscience and religion
Article 10 - right to freedom of expression
Article 11 - right to freedom of assembly and association
Article 12 - right to marry
Article 13 - right to an effective remedy
Article 14 - prohibition of discrimination
The Human Rights Act 1998
The Human Rights Act which received Royal Assent on 9 November 1998, (and mostly coming into force on 2 October 2000), gave domestic effect to the rights and freedoms protected by the European Convention on Human Rights in the UK and the government authorities are obliged to observe these fundamental rights. For instance, Article 3 renders it unlawful for the Home Office to remove any person to a country where they might face torture or inhumane or degrading treatment.
Article 8 cases
Our lawyers have particular experience in arguing article 8 cases often achieving excellent results. Article 8 provides:
‘Everyone 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 well-being 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.’
When deciding cases concerning Article 8, the following assessment is made:
· whether there has been an interference with the right
· whether this interference has a legitimate aim and
· whether if it is proportionate in a democratic society
In immigration cases, article 8 is relevant where
· someone has established a private or family life in the UK and faces an interference of these rights i.e. through separation and removal or
· where individuals want to join their family members in the UK (Family reunion or entry clearance cases) or
· where individuals are being separated from their family members in the UK
Our lawyers will assess each individual case applying this criterion. We will consider each clients circumstances including strength of family ties in the UK, previous immigration and criminal history, any compelling and compassionate factors (including health problems) and other reasons why removal would breach their article 8 rights.
Recent Developments- Case Law
In the summer of 2008, the House of Lords delivered several important judgements directly related to article 8.
The case of Beoku-Betts v Secretary of State for the Home Department [2008] UKHL 39 dealt with the issue of third party rights. The issue in question was whether the Court should consider the private and family life rights of the individual appellant or whether it should encompass the rights of the family members of the appellant as well. The House of Lords decided that all the relevant family members’ rights should be considered. Therefore, if removal is deemed to be disproportionate then family member’s article 8 rights may be infringed and the Secretary of State and the Asylum and Immigration Tribunal must take into account the impact upon family members.
Baroness Hale commented as follows:
“To insist that an appeal to the Asylum and Immigration Tribunal consider only the effect upon other family members as it affects the appellant…is not only artificial and impracticable. It also risks missing the central point about family life, which is that the whole is greater than the sum of its individual parts. The right to respect for the family life of one necessarily encompasses the right to respect for the family life of others, normally a spouse or minor children, with whom that family life is enjoyed.”
A similar principle was held in the Court of Appeal case of AB (Jamaica) v Secretary of State for the Home Department [2007] EWCA Civ 1302 [20]. In this case, it was stated that the (British citizen) husband of an overstayer was in substance “a party to the proceedings…From Strasbourg's point of view, his Convention rights were as fully engaged as hers.”
In the case of Chikwamba v Secretary of State for the Home Department [2008] UKHL 40 the House of Lords held that there was no ‘need’ for the appellant to leave the UK and apply for entry clearance from abroad. The case concerned a person who was not lawfully present in the UK but who had established a family life. The Secretary of State argued that the appellant should return to her country of origin which was Zimbabwe and apply for entry clearance to come to the UK via the usual immigration channels. The House of Lords held that this was wrong. They stated:
“It is, or ought to be, accepted that the appellant's husband cannot be expected to return to Zimbabwe, that the appellant cannot be expected to leave her child behind if she is returned to Zimbabwe and that if the appellant were to be returned to Zimbabwe she would have every prospect of succeeding in an application made there for permission to re-enter and remain in this country with her husband. So what on earth is the point of sending her back? Why cannot her application simply be made here? The only answer given on behalf of the Secretary of State is that government policy requires that she return and make her application from Zimbabwe. This is elevating policy to dogma. Kafka would have enjoyed it. I would allow this appeal.”
This is a complex area of law subject to frequent change. Individuals who believe they may have a human rights case or who may be in a similar position as the appellants in the above mentioned cases can contact us for expert advice and guidance. Our vast experience and knowledge in this field allows us to develop the best strategy to achieve the desired outcome. For further information please contact us on 0207 569 3035 or alternatively email us at info@ergensharif.co.uk