Article 8 and family life

31 October 2019
Immigration lawyers and others often talk of “Article 8”. This is the article of the European Convention on Human Rights which protects family life and private life. These are two separate categories: family life means what it says and private life is everything else that might “glue” a migrant to the UK: job, social network and social integration generally.

Article 8 law is a prodigiously complex area, and the courts and tribunals must have created millions of words in their decisions on the subject. The court structure itself is complex: the Upper Immigration Tribunal and the higher UK courts regularly deliver judgements and so does the European Court of Human Rights.

And the relevant legal provisions in the UK are similarly complicated. Article 8 ECHR is incorporated into British law (along with most of the rest of the European Convention) and the Home Office’s immigration rules touch on the subject in some important sections, and so do various Acts of Parliament.

Faced with this formidable situation, what can we usefully say in a short article like this? Well, one thing we can say for certain is that Article 8 rights are qualified rights, not absolute rights. To put it in a stark way, migrants cannot just in every case come to live in the UK or stay in the UK on the basis that it would infringe their Article 8 human rights if they were not allowed to do so.

Article 8 is all about balance and proportionality: the balance between the rights of “the community” and the rights of the migrant in question. This term “the community” in practice boils down to the Home Office and UK Visas & Immigration, who are deemed to represent it. To put it in another way, the basic position is that the immigration authorities have the right to control immigration and decide who comes here and who stays here, but this right is always potentially modifiable by Article 8 principles.

These are strong and incontrovertible principles - but how might they work in practice?

An interesting case recently heard in the Court of Appeal called “GM (Sri Lanka)” examined these kinds of issues. The wife, husband and children are Sri Lankan nationals. The husband held Discretionary Leave (which is leave outside the immigration rules) but the wife’s student leave had expired and she was an overstayer. She wanted to stay in the UK.

A strong Article 8 family situation, you might think? Well, the Home Office did not think so, and they refused her application for leave under Article 8 principles. And neither did the First-Tier Immigration or the Upper Immigration Tribunal, which upheld the Home Office decision. In fairness to these bodies, we should point out that the children were very young at the time of the application to the Home Office, and it might not have disrupted their lives too much if they had had to relocate to Sri Lanka with their parents.

But the application to the Home Office had been made in 2014 and it was not until 2019 that the case reached the Court of Appeal. Five years is a long time in immigration law, and by 2019 events had moved on somewhat. It is often said that in cases of this kind that time is on your side, and this was the case here.

By this time the children were of course a few years older, and the Home Office decision would therefore not seem as reasonable as it had done at the time. But there had also been another - and very significant - development. The father and children had in the meantime acquired settled status, on the basis of his Discretionary Leave.

The Court of Appeal said that the husband’s and children’s Article 8 rights were also part of the human rights picture. This was uncontroversial, and is well established in jurisprudence. But the court went a bit further. They said that an important element in the Article 8 assessment should be what the husband and children would have to give up if they had the leave the UK if the wife had to go back to Sri Lanka.

In this case it was quite a lot because, in this situation, they would eventually lose their settled status. This is because generally a migrant will lose settled status if they stay outside the UK for more than two years.

The court also said a few other things about human rights assessments, including that relevant immigration rules and Acts of Parliament “must be construed to ensure consistency with Article 8”. This opened up a few interesting avenues, which we might explore on another occasion.

This was a complex judgement that touched on many different issues but in any event the upshot of the case was that the Home Office was directed to reconsider their decision, on the basis of updated facts and updated law. There must surely be a good chance that the appellant will this time be successful.

Article 8 cases can get very complicated, and you would be well advised to instruct a good lawyer if you find yourself embroiled in one.


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