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Can Article 8 be ‘overridden’?


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The BBC is today reporting that Theresa May intends on Monday to introduce new guidelines telling judges what to think about Article 8 of the European Convention on Human Rights. Article 8 is the right to a private and family life and is worth quoting in full:

1. Everyone 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 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.

May is quoted as stating that Article 8 is not absolute and can be overridden to prevent crime, protect national security and safeguard the rights of others:

“In the interests of the economy, or controlling migration or public order, those sort of issues, the state has a right to qualify the right to a family life.”

As anyone can see, she is largely right. Article 8 is not absolute, unlike some other human rights such as Article 3, the right to freedom from torture. The right to a private and family life must be balanced against other factors. Where she is wrong is in suggesting that the State has a right to qualify Article 8. This is fundamentally and misleading because Article 8 is already a qualified right. It is part of its nature that it is qualified. The State does not need to do anything to qualify it, and to suggest otherwise is to misrepresent the nature of human rights for political purposes and pretend that something can be done when in truth it cannot.

Striking a difficult balance between the right to a private and family life and the very important competing considerations is exactly what immigration judges do, day in, day out. In the vast majority of cases (between 2 and 8% according to JCWI) the judge comes down against the foreign criminal. Only in pretty small minority of cases does whatever private or family life has been established in the UK take precedence over other considerations.

Assuming that all this is not mere political gumph to please the anti-human rights lobby, what May is really suggesting is simply removing Article 8 or, to put it another way, making the competing factors absolute and binding. When the courts reach a decision on Article 8 (and this supposedly applies to the UK Border Agency as well) they have to undertake a five step legal assessment:

(i) Will there be an interference by a public authority with the exercise of the applicant’s right to respect for his private or family life?

(ii) If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8?

(iii) If so, is such interference in accordance with the law?

(iv) If so, is such interference 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?

(v) If so, is such interference proportionate to the legitimate public end sought to be achieved?

This assessment is mandated by the House of Lords decision in Razgar [2004] 2 AC 368 and by innumerable Strasbourg judgments. There is no legal way round the assessment. May wants judges always to answer ‘yes’ to question (v) in every case, but in law they cannot. Our judges remain independent and must carry out an independent assessment. The only ways to achieve what May wants are:

1. Modify the Human Rights Act

2. Withdraw from the Council of Europe

3. Remove access to the courts, or

4. Do away with an independent judiciary.

From the language she uses, it is disturbing to think a major politician, the Home Secretary no less, is actually advocating the last of these options. Unfortunately, there is a precedent for legislating to tell judges what to think: the appalling  section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 was a similar attempt in another context. In any other area of law than immigration this would have caused a huge outcry for not just undermining but explicitly abrogating the independence of the judiciary, but there are few in or outside Parliament who are willing to stand up for asylum seekers or immigrants. Still less for foreign criminals or for their spouses or children.

There may be short term political benefits but in the longer term this sort of politics is very dangerous.

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The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.


8 Responses

  1. Good analysis.
    “(iv) If so, is such interference necessary in a democratic society..
    (v) If so, is such interference proportionate..”

    Here I think you have hit the proverbial nail on the head. Denying more spousal visas for residents/citizens as proposed is not necessary, and in many cases, not proportionate.

    Neither will this attempt to reduce net migration be effective. I suspect it will be statistically insignificant.

    Yes it will reduce numbers classified under family migration, but will be effectively offset by those using DLR, Singh/EC38, & Zambrano instead, as well as those using Art.8 at appeal (Mrs May also loves immigration lawyers).

    1. Post on spouse visa stuff and reducing numbers to come tomorrow, Mr T, I’ve been thinking about that all day.

  2. The problem is not with the judges but with the Home Office. If as is often the case they take years before they get around to removing someone it is hardly surprising that Art 8 is invoked. Recently I was involved in case where the appellant was given ILR whilst serving 5 years for serious drugs offences. 10 months later they start the process of deportation. Bonkers!

  3. Someone needs to tell the SSHD what the notion of ‘separation of powers’ is about. Parliament drafts the rules, interpretation and application of the rules is a speciality of the judiciary. Not so long ago the UK Govt was attacking Mugabe regime for doubling up as judges, are they acting any different from the Mugabe/ Gadaffi Regimes?….

    Theresa May should concetrate on her primary duties, put the UKBA house in order,sort out asylum backlogs, sort out the long queques for which top officials still get paid bonuses for, assessing ‘proportionality’under article 8 is an area of speciality for the judiciary.

  4. Can a DLR application be affected by this overridden thing. What are the consequences for those who will apply flr (o) article 8 based. And what will happen to those who have been refused dlr but home office says human rights claim is being cosidered specifically article 8 but eventually refused but not issued with removal.

  5. May has been using this excuse to deny respectable British citizens like myself who own our homes & have adequate income to support our NON EU spouses from extending their spouse visa thus denying us our right to a Family Life.
    I am a pensioner in my 70s. My wife is a NON EU national she has a BA degree and worked for two international companies.
    In Jan 2011 we applied for an extension to her Spouse visa which was denied. My wife had to return to her own country and we have been seperated since.
    I have looked at the English test and Life in the UK test. I have found that even born and bred British nationals have failed them.
    They are now viewed as being spurious to limit immigration numbers of NON EU nationals just to meet the Tory pre 2010 election pledge to reduce immigration numbers.
    This numbers game is dishonest and unjust to deny a respectable self sufficient British nationals their Right to a Family Life the FREEDOM to live quietly and respectably is UNLAWFULL and the Judiciary have ruled Mrs May has tried to side-step Parliamentary Scrutiny under the 1971 Immigration Act!