What is Article 8?

Article 8 is the part of the European Convention on Human Rights that gives everyone the right to respect for their private and family life, their home and their correspondence. In UK immigration cases it is used to ask whether a refusal or removal is justified. The right is not absolute and can be limited for listed public interests.

How Article 8 works

Article 8 is one of the rights in Schedule 1 to the Human Rights Act 1998. Article 8(1) says everyone has the right to respect for his private and family life, his home and his correspondence.^{[1]legislation.gov.uk, Human Rights Act 1998, Schedule 1: The Articles}

The right is not absolute. Article 8(2) says there must be no interference by a public authority with the exercise of the right, except as is in accordance with the law and 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.^{[1]legislation.gov.uk, Human Rights Act 1998, Schedule 1: The Articles}

In immigration cases the question is whether a decision under the Immigration Acts breaches a person’s right to respect for private and family life under Article 8, and would so be unlawful under section 6 of the Human Rights Act 1998. Part 5A of the Nationality, Immigration and Asylum Act 2002 applies when a court or tribunal decides that question. It tells the court to ask whether an interference is justified under Article 8(2), and to have regard to the public interest considerations in section 117B in all cases.^{[2]legislation.gov.uk, Nationality, Immigration and Asylum Act 2002, section 117A: Application of this Part} A claim that raises this question is a human rights claim.

Proportionality

Proportionality is the balance at the heart of an Article 8 case. It asks whether refusing or removing a person is justified when the harm to them and their family is set against the public interest.

Home Office guidance puts it this way for family cases under Appendix FM. In that guidance, “exceptional” means circumstances in which refusal could result in unjustifiably harsh consequences for the person or their family, such that refusal would not be proportionate under Article 8. Unjustifiably harsh consequences are outcomes that are not justified by the public interest, including maintaining effective immigration controls, preventing burdens on the taxpayer, promoting integration and protecting the public.^{[6]UK Visas and Immigration, Family life (as a partner or parent) and exceptional circumstances: caseworker guidance}

The guidance says the assessment looks at whether refusal would be proportionate, taking into account all the facts and, as a primary consideration, the best interests of any relevant child. It also says that where a person’s family life was formed in precarious circumstances, such as while they had limited leave, something very compelling is required to outweigh the public interest in refusal.^{[6]UK Visas and Immigration, Family life (as a partner or parent) and exceptional circumstances: caseworker guidance}

The Immigration Rules carry this into the decision itself. Paragraph GEN.3.2 of Appendix FM says that where an application does not otherwise meet the requirements, the decision maker must consider whether there are exceptional circumstances that would make refusal a breach of Article 8 because it would result in unjustifiably harsh consequences. See exceptional circumstances.^{[5]Home Office, Immigration Rules Appendix FM: family members}

The public interest considerations

Section 117B lists the considerations that apply in all cases.^{[3]legislation.gov.uk, Nationality, Immigration and Asylum Act 2002, section 117B: Article 8 public interest considerations applicable in all cases}

Section 117D defines the terms. A qualifying child is a person under 18 who is a British citizen or who has lived in the UK for a continuous period of seven years or more. A qualifying partner is a partner who is a British citizen or who is settled in the UK.^{[4]legislation.gov.uk, Nationality, Immigration and Asylum Act 2002, section 117D: Interpretation of this Part}

Example

Mia is 9. She has lived in the UK for 8 years and is not a British citizen. Her mother, Rosa, has no permission to stay and the Home Office refuses her application. Rosa has a parental relationship with Mia.

Under section 117D, Mia is a qualifying child, because she is under 18 and has lived in the UK for a continuous period of seven years or more.^{[4]legislation.gov.uk, Nationality, Immigration and Asylum Act 2002, section 117D: Interpretation of this Part}

Section 117B(6) says that, for a person not liable to deportation, the public interest does not require removal where there is a genuine and subsisting parental relationship with a qualifying child and it would not be reasonable to expect the child to leave the UK.^{[3]legislation.gov.uk, Nationality, Immigration and Asylum Act 2002, section 117B: Article 8 public interest considerations applicable in all cases} A tribunal also has to weigh the other considerations in section 117B, such as the little weight given to a relationship formed while a person is in the UK unlawfully.

This example only shows how the statute is built. It does not say how a particular case would be decided.

What people get wrong

Article 8 is not a right to live in whichever country a family prefers. The text protects respect for private and family life, and it allows a public authority to interfere where the law and Article 8(2) allow it.

Home Office guidance makes the point for couples. It says Article 8 does not oblige the UK to accept the choice of a couple as to which country they would prefer to live in.^{[6]UK Visas and Immigration, Family life (as a partner or parent) and exceptional circumstances: caseworker guidance} Meeting the requirements of the Immigration Rules and relying on Article 8 are also separate steps. The Rules in paragraph GEN.3.2 only ask about exceptional circumstances where an application does not otherwise meet the requirements.^{[5]Home Office, Immigration Rules Appendix FM: family members}

The bottom line

Article 8 protects respect for private and family life, but the right can be limited for listed public interests, and proportionality is how the balance is struck. In UK immigration cases, Part 5A of the 2002 Act and Appendix FM set out what a decision maker, tribunal or court must weigh. The best interests of any relevant child are a primary consideration. A solicitor can say how these rules apply to a particular family.