The EU and Human Rights Law

29 September 2016
There has, for obvious reasons, been much discussion in the media recently about the EU and European institutions. There has also been some discussion about the UK scrapping the Human Rights Act, abandoning the European Convention on Human Rights (ECHR) and creating a new British “bill of rights” to replace it, and the Government is apparently serious about this. The ECHR provides a range of rights to everyone under UK jurisdiction. Some of them are uncontroversial (like the right to a fair trial) but some of them, in some people’s opinion, are too generous.

So now that the British public have decided that the UK should leave the EU it seems as though we may be on course for a wholesale disengagement from Europe. Whatever the outcome of all this we are going through one of those times when history is being made; if everything comes to fruition the UK will no doubt become a rather different sort of place.

It is important to understand that Brexit and human rights law are two different and separate subjects. Human rights law - although in the public mind a very “European” thing - is largely unconnected with the EU and its institutions. It has its own senior court (the European Court of Human Rights) and structures of its own. It would thus be perfectly possible for the UK to leave the EU and remain part of the ECHR if that was what the Government wanted.

Obviously, Brexit is going to have some sort of effect on European migrants and their dependants - although exactly what effect this will be is at the moment unclear. And if the UK really does abandon the ECHR this is likely to have an effect on migrants generally.

The thing that critics of human rights law perhaps most particularly dislike is Article 8 of the ECHR. Article 8 is the Article that provides protection for family and private life and, since the Human Rights Act (which incorporated the ECHR into British law) came into effect in 2000, it has become very important in the immigration field. To put it in a nutshell, migrants who cannot meet the requirements of the standard immigration rules may nonetheless be able to succeed in their immigration case on the basis of Article 8 because, for example, they have strong family connections in the UK.

This, in critics’ opinion, provides an unfair “backdoor” route for migrants to stay in the UK when otherwise they would not be able to. The betting must therefore be extremely high that any new British bill of rights will not contain anything quite like Article 8.

Various legal and constitutional authorities have pointed out that for the UK to disengage from the ECHR might not be so easy. Some have even suggested that, because of the legal complexities of the relationship between the different nations of the UK, it might only be feasible for England to withdraw from the ECHR, not the other parts - an interesting notion indeed!

So the current situation is causing a lot of uncertainty for migrants and potential migrants. If the UK really does withdraw from the ECHR there will inevitably be a lot of legal and political manoeuvring. We will keep our readers informed as the situation develops.


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