Article 8 European Convention on human rights(ECHR) and Immigration

The essay examines the application of Article 8 ECHR in relation to asylum, entry clearance, deportation, children , private life, students and policies.

Article 8.1 ECHR states that “Everyone shall have the right to respect for his private and family life, his home and correspondence.”

Article 8.2 states that” There shall be no interference 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 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 or freedoms of others. “

The current approach to the application of Article 8 in immigration and asylum law was outlined by Lord Bingham in Razgar¹ as follows :Firstly, whether the proposed removal will be an interference by a public authority with the exercise of the applicant’s right to respect for private or family life? Secondly, if so will such an interference have consequences of such gravity as potentially to engage the operation of article 8?Thirdly,whether such interference is lawful?Further,whether such interference 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?Finally,whether the interference is proportionate with the legitimate public end being pursued.

Article 8 is a qualified right which must be balanced against other considerations including the maintenance of immigration control and the prevention of disorder or crime.

Paragraph 362 of the immigration rules states that a person subject to a deportation order must leave the UK and authorises the person’s detention . There are two sets of powers of removal: Immigration Act 1971 sch. 2 empowers the Secretary of state to remove people who have been refused leave to enter and s.10 Immigration and Asylum act 1999 gives power to remove people who have overstayed the limit of their leave or breached conditions of leave or obtained leave to remain by deception.

S3(5) of the Immigration Act 1971 states that a person who is not a British citizen may be deported. There are three grounds for deporatation.Firstly,s.3(5)(a) where the Secretary of state deems it to be conducive to the public good;secondly,s.3(5)(b)where an individual is a family member of a deportee and thirdly, 3(6) where there is a recommendation of a criminal court sentencing a person over the age of 17 years.

Although an appeal against an immigration decision can only be brought by the person to whom it is addressed this does not rule out the fact that the human rights and interests of of family members who are not the subject of the decision can only be addressed in a separate litigation.

Huang² suggests that one of the guiding principles is whether “family life cannot be reasonably expected to be enjoyed elsewhere.” This approach was followed in Beoku-Betts(2008.)³

According to s395C Asylum and Immigration Tribunal(Procedure)Rules 2005 before a decision to remove under s10 all relevant factors known to the Secretary of state must be considered including strength of connections with the UK,domestic and compassionate circumstances and in the case of family members s 365-368.

“The most obvious and damaging interference with family life by a removal is the break- up of the family. Besides, the upheaval and disruption of support networks, wider family relationships and so on amounts to an interference with family and private life. If other family members are removed, the impact on the whole family must be considered as a potential breach.”⁴

In Beoku -Betts (2008) the House of Lords held that the concept of family should be construed widely and the family unit considered as a whole for Article 8 reasons. Baroness Hale stated that” A narrow approach is not only artificial and theoretical but “risks missing the central point about family life which is that the whole is greater than the sum of its parts,” adding that in an appeal to the Asylum and immigration Tribunal “ 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.”

Family ties was also decisive in EB(Kosovo)2008.⁵ Here the House of Lords stated that where the removal has the effect of severing the relationship between an appellant and his or her children it would rarely be proportionate to uphold an order for removal of a spouse if there is a close and genuine bond with the other spouse and that a spouse cannot reasonably be expected to follow the removed spouse to the country of removal, or if the effect of the order is to break a subsisting relationship between parent and child” Sedley LJ stressed that the critical issue in assessing the proportionality of a removal which will break up a family unless the family itself decamps is not whether there is an obstacle to that happening but whether it is reasonable to expect the family to leave with the appellant.

In Shamin Box(2002)⁶ the Tribunal stated that in entry clearance cases, the decision-makers should not treat the Article 8 question as ‘one of whether there had been an unjustified interference with the right to family life’ but should consider whether there had been an unjustified lack of respect for family life and that the focus should be whether, in the light of the positive obligations in the UK to facilitate family reunion, there had been a failure to act in the particular circumstances of the case.

Further, in Singh v Entry Clearance Officer New Delhi (2004⁷),the issue before the court was whether family life existed between the appellant and his sponsors within the meaning of 8(1)ECHR.It was held that since the existence of family life had been established, the welfare of the child within the family needed to be taken into consideration.

Chikwamba⁸ involved a failed asylum seeker. In Chikwamba v SSHD(2008 ) their lordships had to consider whether removal to make an entry clearance application was proportionate. Lord Brown was sceptical of the government’s argument that the policy was necessary to prevent applicant’s from jumping the entry clearance queue, adding that the real reason was to discourage people from coming to the UK.

He found ( at para 44) that “only comparatively rarely, certainly in family cases involving children, should an Article 8 appeal be dismissed on the basis that it would be proportionate to apply for leave from abroad. The House of Lords accepted that there was an obstacle to the appellant’s husband returning to Zimbabwe as he had been granted refugee status.

Baroness Hale stressed that it must be disproportionate to expect a four year old girl who was born and has lived here all her life here to be separated from her mother or travel with her to endure the harsh conditions in Zimbabwe simply in order to enforce the entry clearance procedures.

This case demonstrates the relevant factors to be taken into account in balancing immigration control with the severe disruption of family life that removal entails and that “the maintenance of family life” is not itself a legitimate aim in Article 8(2).

However, in Lee v SSHD (2011)⁹ where the appellant wanted the Home secretary to revoke a deportation order which was the result of his persistent reoffending on Article 8 grounds, the outcome was disappointing.

His appeal failed because of what Sedley LJ described as the appellant’s bad behaviour ,stressing that sometimes the balance between justification and the consequences of deportation falls the other way .Lady Hale stated that “provided that the Tribunal did not treat any other consideration as inherently more significant than the best interests of the children, it could conclude that the strength of the other considerations outweighed them.”

Similarly, in LM(Jamaica)2010¹⁰ it was held that it was not a violation of Article 8 to remove the appellant to Jamaica given the fact that she married her BOT citizen husband from Montserrat when she was in the UK without leave ,had no UK born children and strong family connections to Jamaica, including three children one still a minor. Despite the fact that the settled husband was in receipt of invalidity benefit in the UK,it was reasonable to expect him to follow the appellant to Jamaica.

In contrast in LD Zimbabwe(2010)¹¹ the Upper Tribunal found that immigration control is not a legitimate aim in itself, although it is a means of protecting the economic wellbeing of the country(at paragraph 17).Instead there can be little reason to doubt that the best interests of the child should be the primary reason in immigration cases.

This approach was followed in ZH(Tanzania) v SSHD(2011).¹² The appellant was a failed asylum seeker who had two British children aged 12 and 9.Lady Hale noted that” although nationality is not a ‘trump card’ it is of particular importance in assessing the best interests of the child…As citizens these children have rights which they will be unable to exercise if they move to another country. They will lose the advantages of growing up and being educated in their own country.”

The Supreme court held that the “best interests of the child” meant the wellbeing of the child. The court found that in making the proportionality assessment under Article 8 the best interests of the child must be the primary consideration although they could be outweighed by the cumulative effect of other considerations adding that here the countervailing factors were the need to maintain firm immigration control and as well as her appalling immigration history. The children were not, however, to be blamed for that and the consequence of removing their primary carer would be that they have to leave with her.In those circumstances it would be disproportionate to remove the appellant.

VW established that the test in removal cases is not whether there are “insurmountable obstacles” but whether it is reasonable to expect a UK based person to move to another country. The court said “ The question in any one case will be whether the hardship consequent on removal will go far enough beyond this baseline to make removal a disproportionate use of immigration controls. This in turn will depend, among other things, on the severity of the interference. If the appellant’s partner, for example, was familiar with Uganda, the consequences of removal might be that much less severe; but the impact on the rights attending his citizenship of this country would still weigh heavily in the scales. The appellant had decided that if she was removed she would leave her daughter in UK with her father. Her appeal was allowed on Article 8 grounds.

Strong family ties made a difference in Omojudi v United Kingdom.¹³ The court found that although the applicant had committed several earlier offences, these had effectively been waived by the UK when granting him indefinite leave to remain. So only the recent offence, which caused the imprisonment and subsequent deportation was to be assessed against him in the Article 8 balance. It was held that this was outweighed by the applicant’s length of residence and strong family ties in the UK.

Furthermore, in Khan v United Kingdom¹⁴ ECHR the issue before the court was whether deportation would breach the Article 8 rights of the claimant. He informed the court that his British partner had given birth to his daughter and it was accepted that deportation would interfere with his private life as reflected in his relationship with his mother and siblings.There could be no family life between parents and adult children unless they could demonstrate additional elements of dependence. The claimant’s Article 8 rights had to be balanced against, the prevention of crime and disorder, having imported heroin. The principal issue was whether the interference was necessary in a democratic society. The court held that his deportation would not be proportionate to the legitimate aim pursued and would therefore not be necessary in a democratic society. There would therefore be a breach of his Article 8 rights if he was deported to Pakistan.

In Secretary of State for the Home department v Pankina and others(2010)¹⁵ the issue before the court of Appeal was the applicability of Article 8 with reference to the £800 maintenance requirement and three month criterion. In allowing the Appeals it was held that there was no absolute rule against the incorporation by reference to material into a measure which had legal effect, even when the material was required to be laid before Parliament. A policy was precisely not a rule; it was required by law to be applied without rigidity and to be used and adapted in the interest of fairness and good sense. Decisions under the point-based

system have to take into account an individual’s Article 8 rights. This implied that in most cases the Secretary of state would have to evaluate the consequences on the quality of the applicant’s life ,both for them and the UK,in cutting short their career. It was one thing to expect an applicant to have the necessary academic and linguistic qualifications but unreasonable to reject someone simply because of falling marginally short of a financial requirement.

While in CDS(Brazil) 2010¹⁶ it was held that firstly funds are ‘ available’ to a claimant if they belong to a third party who is willing to deploy them in support of the claimant. Secondly, Article 8 does not prevent an Immigration judge the liberty to depart from the Immigration rules and it is unlikely for a person to demonstrate an Article 8 right by coming temporarily to the UK.However,a person who is studying here may build up a private life and the public interest in removal before the end of the course may be reduced where there are ample financial resources available.

Regarding policies ,it was held in IA¹⁷ UKAIT that it is acceptable for an Immigration judge to allow an appeal outright under a policy where the findings of the judge are such that the policy is bound to be applied in the applicant’s favour. On the other hand ,the apparent eligibility of the appellant to benefit from a policy is a relevant factor in the performance of the Article 8 balancing act. In such a case, he will not have to demonstrate

’truly exceptional exceptional’ circumstances, rather it will not be necessary in a democratic society to remove him when the Secretary of state’s own policy would allow him to stay.

In AG and others(Kosovo) UKAIT¹⁸ it was held that, firstly if human rights are argued before the Tribunal, they should be determined in advance of any argument based on discretion where the claimant’s human rights allow him to enter or remain in the UK ;any discretionary powers allowing him to do so would be pointless. Secondly, a policy that in all circumstances of the case would be exercised in the claimant’s favour which contains no elements that would genuinely leave the decision open is relevant in the assessment of proportionality because it addresses the importance of maintaining immigration control in similar cases.Thirdly,if the claimant fails to establish that his human rights trigger the remedy he seeks but is able to show that there was at the date of the decision a policy in force that affected his case but was ignored, he may win an appeal on the grounds that the decision having been made not in accordance with published policy was ‘otherwise not in accordance with the law’ within the meaning of s84(1)(e)

Nationality, Immigration and Asylum Act 2002.Fourthly,if the policy was taken into account and he can show that the terms of the policy and the facts of his case are such that there was no option open to the decision maker other than to grant him the remedy he seeks,his appeal should be allowed with a direction.Finally,where within the terms of policy the benefit to the appellant depends on the exercise of a discretion outside the Immigration rules, the Tribunal has no power to substitute its own decision for that of the decision maker.

It has been suggested by Elspeth Berry in her article “Deportation of ‘Virtual National’ offenders: The Impact of ECHR and EU law”(2009)¹⁹ that in cases involving ’virtual nationals’ states should operate a presumption against deportation. The term virtual nationals refers to migrants who have arrived in the host state at a young age.

Nevertheless, the role of Article 8 in Asylum and immigration law is controversial .In her commentary “ECHR: Deportation of Migrant Following Criminal Conviction: ECHR Art.8 Omjudi v UK²⁰, Bettinson states that there is controversy about whether it is appropriate to use family ties in assessing whether deportation following criminal conviction amounts to breach of an individual’s Article 8 rights because some applicant’s may not have family ties and are hindered by an approach which does not give sufficient weight to their personal circumstances. This further leads to a position of legal uncertainty as national courts become unclear about what aspects of an applicant’s personal circumstances should be accorded weight when assessing whether deportation is a proportionate response to protect the public from crime.

In conclusion, my discussion of the application of Article 8 in relation to asylum, deportation, entry clearance, children, students and policies has indicated that the statement is relevant to a large extent in immigration and asylum law. The fact that human beings are social animals has significantly influenced the outcome of many decided cases which represents a positive development. On the other hand, there is still controversy as to whether it is sufficient to assess the degree to which an applicant’s Article 8 rights would be breached by deportation and removal as a result of persistent reoffending ,for example, simply on the basis of family ties alone .It has been suggested that greater fairness and legal certainty would be promoted when the courts in making a decision to deport after criminal conviction consider ‘the totality of social ties the migrant’ has both with his family and the community within the host state.

Bibliography…

Gina Clayton , Textbook on Immigration and Asylum,

4^th edition , OUP, New York 2010

Margaret Phelan and James Gillespie ,Immigration Law Handbook,7^th Edition, OUP, New York,2010

Christopher Vincenzi and David Marrington, Immigration

Law, The Rules Explained, Sweet and Maxwell,London,1992

UK border Agency : http://www.ukba.homeoffice.gov.uk/

Home office : www.homeoffice.gov.uk

1 R(on the application of Razgar) v SSHD(2004)UKHL 27

2 Huang and Kashmiri v SSHD(2007)UKHL

3 Beoku -Betts (2008)UKHL 39

4 P134 Textbook on Immigration and Asylum Law

5 EB(Kosovo)2008 UKHL 41

6 Shamin Box(2002) UKAIT 02212

7 Singh v Entry Clearance Officer New Delhi (2004) EWCA

8 Chikwamba v SSHD(2008 UKHL 40

9 In Lee v SSHD (2011) EWCA civ 348

10 LM(Jamaica)2010 UKUT 379(IAC)

11 LD Zimbabwe(2010) UKUT 278

12 ZH(Tanzania) v SSHD(2011) UKSC 4

13 Omojudi v United Kingdom Application no 1820/08 ECHR

14 Khan v United Kingdom (Appication no 47486/060 ECHR(fourth section)

15 Home department v Pankina and others(2010) EWCA civ 719

16 CDS(Brazil) 2010 UKUT(IAC)

17 IA(Applying policies)2006 UKAIT

18 AG and others(Kosovo) UKAIT 00082

19 “Deportation of ‘Virtual National’ offenders: The Impact of ECHR and EU law”(2009) 23 Journal of Immigration,Asylum and Nationality Law 11

20 ECHR:Deportation of Migrant Following Criminal Conviction:ECHR Art.8Omjudi v UK,Vanessa Bettinson