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> Article 8 - The Right to Respect for Private and Family Life, Home and Correspondence
The Right to Respect for Private and Family Life, the Home and Correspondence
Article 8 provides as follows:
“(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.”
Article 8, the courts sometimes say, posits five questions which must be answered in turn in order to determine whether there is a breach of the obligation it creates.
(i) Has private or family life been established?
(ii) Has there been an interference with the right to respect for such private or family life?
(iii) Is any such interference is in accordance with the law?
(iv) Is any such interference necessary in a democratic society as being in the interests of one of the legitimate aims set out in Article 8's second paragraph? Immigration control is accepted as being such an aim, so absent a case of bad faith, it is difficult to see this question ever being answered in favour of an immigrant.
(v) Are the means chosen necessary in a democratic society, i.e. are they proportionate to the ends sought?
In general Article 8 cases arise in the context of immigration law when the right is first established in the United Kingdom and it is expulsion itself, rather than it’s later consequences, which creates the interference with the human right.
However, a flagrant breach of Article 8 based on circumstances entirely subsisting in a country of origin could prevent a removal. Such might be the case, for example, if an individual’s private life in terms of their sexual identity was threatened or, as it was unsuccessfully argued in Bensaid v UK (2001) 33 EHRR 10 on the facts of that case, that a person’s mental health would be so destabilised by the absence of treatment abroad that their moral and physical integrity would be destroyed.
Establishment of private and family life
Family relationships
Family life can include various relationships. Marckx v Belgium (1979) 2 EHRR 330:
“The Court concurs entirely with the Commission’s established case law on a crucial point, namely that Article 8 (art. 8) makes no distinction between the ‘legitimate’ and the ‘illegitimate’ family. Such a distinction would not be consonant with the word ‘everyone’, and this is confirmed by Article 14 (art. 14) with its prohibition, in the enjoyment of the rights and freedoms enshrined in the Convention, of discrimination grounded on ‘birth.’
...‘Family life’, within the meaning of Article 8 (art. 8), includes at least the ties between near relatives, for instance those between grandparents and grandchildren, since such relatives may play a considerable part in family life.”
In Sen v Netherlands (2003) 36 EHRR 81, the European Court of Human Rights made it very clear that a biological parent-child relationship will almost always give rise to family life:
‘The respondent Government acknowledges that the existence of “family life” between the applicants has been established. The Court reiterates in this regard that a child born of a marital union is ipso jure part of that relationship; hence from the moment of the child’s birth and by the very fact of it, there exists between him and his parents a bond amounting to family life (Gul v. Switzerland (1996) 22 EHRR 93, para 32; Boughanemi v. France (1996) 22 EHRR 228, para 35) which subsequent events cannot break save in exceptional circumstances (Berrehab v. Netherlands (1989) 11 EHRR 322, para 21; Ahmut v. Netherlands (1997) 24 EHRR 62, para 60).’
In Singh v ECO New Delhi [2004] EWCA (Civ) 1075 the Court of Appeal examined Strasbourg case law which shows that family and private life is a question of fact and can cover a range of diverse situations:
“… the starting point of the law is a tolerant indulgence to cultural an
d religious diversity and an essentially agnostic view of religious beliefs … such is the diversity of forms that the family takes in contemporary society that it is impossible to define, or even to describe at anything less than almost encyclopaedic length, what is meant by "family life" for the purposes of Article 8. The Strasbourg court, as I have said, has never sought to define what is meant by family life. More importantly for present purposes, and this is a point that requires emphasis, the Strasbourg court has never sought to identify any minimum requirements that must be shown if family life is to be held to exist. That is because there are none….
...The existence or non-existence of "family life" for the purposes of Article 8 is essentially a question of fact depending upon the real existence in practice of close personal ties".
The ECtHR in Berrehab v Netherlands (1988) 11 EHRR 322 held that cohabitation, whilst strong evidence, is not an essential feature of family life:
“The Court likewise does not see cohabitation as a sine qua non of family life between parents and minor children. It has held that the relationship created between the spouses by a lawful and genuine marriage such as that contracted by Mr. and Mrs. Berrehab has to be regarded as ‘family life’ (see the Abdulaziz, Cabales and Balkandali judgment of 28 May 1985, Series A no. 94, p. 32, § 62). It follows from the concept of family on which Article 8 (art. 8) is based that a child born of such a union is ipso jure part of that relationship; hence, from the moment of the child’s birth and by the very fact of it, there exists between him and his parents a bond amounting to ‘family life’, even if the parents are not then living together ... Subsequent events, of course, may break that tie ...”
But family life will not necessarily be accepted to be established between adults (e.g. adult children and their parents, adult siblings), see Advic v United Kingdom 00025525/94 (6 September 1995):
“Although this will depend on the circumstances of each particular case, the Commission has already considered that the protection of Article 8 (Art. 8) did not cover links between adult brothers who had been living apart for a long period of time and who were not dependent on each other (No. 8157/78, Dec. 5.12.79, unpublished). Moreover, the relationship between a parent and an adult child would not necessarily acquire the protection of Article 8 (Art. 8) of the Convention without evidence of further elements of dependency, involving more than the normal, emotional ties (No. 10375/83, Dec. 10.12.84, D.R. 40 p. 196).”
Private life
The concept of private life as protected by Article 8, has repeatedly been held to be a very broad one. In Niemietz v Germany (1992) 16 EHRR 97 the EcTHCR said as follows at para 29:
‘The Court does not consider it possible or necessary to attempt an exhaustive definition of the notion of "private life". However, it would be too restrictive to limit the notion to an "inner circle" in which the individual may live his own personal life as he chooses and to exclude therefrom entirely the outside world not encompassed within that circle. Respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings.’
In the House of Lords case of Razgar, Lord Bingham said the following about the nature of private life (paragraph 9):
‘This judgment establishes, in my opinion quite clearly, that reliance may in principle be placed on article 8 to resist an expulsion decision, even where the main emphasis is not on the severance of family and social ties which the applicant has enjoyed in the expelling country but on the consequences for his mental health of removal to the receiving country. The threshold of successful reliance is high, but if the facts are strong enough article 8 may in principle be invoked. It is plain that "private life" is a broad term, and the Court has wisely eschewed any attempt to define it comprehensively. It is relevant for present purposes that the Court saw mental stability as an indispensable precondition to effective enjoyment of the right to respect for private life. In Pretty v United Kingdom (2002) 35 EHRR 1, paragraph 61, the Court held the expression to cover "the physical and psychological integrity of a person" and went on to observe that
"Article 8 also protects a right to personal development, and the right to establish and develop relationships with other human beings and the outside world."
Elusive though the concept is, I think one must understand "private life" in article 8 as extending to those features which are integral to a person's identity or ability to function socially as a person. Professor Feldman, writing in 1997 before the most recent decisions, helpfully observed ("The Developing Scope of Article 8 of the European Convention on Human Rights", [1997] EHRLR 265, 270):
"Moral integrity in this sense demands that we treat the person holistically as morally worthy of respect, organising the state and society in ways which respect people's moral worth by taking account of their need for security."’
The concept is clearly an exceedingly broad one. In Janjanin v Secretary of State for the Home Department [2004] EWCA Civ 448 the Court of Appeal did not refuse to recognise that valuable and responsible work in the National Health Service could constitute private life. Equally someone who made a great contribution to the community outside work, or who has close relationships in the UK such as being someone’s carer, might be able to build a case.
Article 8 does not only deal with strict family life scenarios. It may also prevent a person’s removal where their private life in terms of their mental (or perhaps physical) health would be affected seriously whilst falling short of Article 3 ill-treatment, however such a breach would need to be flagrant - see Ullah (HL):
“Another possible field of application could be the expulsion of an alien homosexual to a country where, short of persecution, he might be subjected to a flagrant violation of his article 8 rights. In Z v Secretary of State for the Home Department [2002] Imm AR 560 this point came before the Court of Appeal. Schiemann LJ (with whom the other members of the court agreed) was not prepared to rule out such an argument. In my view he was right not to do so. Enough has been said to demonstrate that on principles repeatedly affirmed by the ECtHR article 8 may be engaged in cases of a real risk of a flagrant violation of an individual's article 8 rights.”
The Strasbourg court’s opinion in Bensaid v UK (2001) 33 EHRR 10 was that:
"Not every act or measure which adversely affects moral or physical integrity will interfere with the right to respect to private life guaranteed by Article 8. However, the Court's case law does not exclude that treatment which does not reach the severity of Article 3 treatment may nonetheless breach Article 8 in its private life aspect where there are sufficiently adverse affects on physical and moral integrity. Private life is a broad term not susceptible to exhaustive definition. The Court has already held that elements such as gender identification, name and sexual orientation and sexual life are important elements of the personal sphere protected by Article 8. Mental health must also be regarded as a crucial part of private life associated with the aspect of moral integrity. Article 8 protects a right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world. The preservation of mental stability is in that context an indispensable precondition to effective enjoyment of the right to respect for private life.... Even assuming that the dislocation caused to the applicant by removal from the United Kingdom where he has lived for the last 11 years was to be considered by itself as affecting his private life, in the context of the relationships and support framework which he enjoyed there, the Court considers that such interference may be regarded as complying with the requirements of the second paragraph of Article 8, namely as a measure "in accordance with the law", pursuing the aims of the protection of the economic well being of the country and the prevention of disorder and crime, as well as being "necessary in a democratic society" for those aims."
See the more abbreviated definition from the House of Lords in Razgar [2004] UKHL 27 quoted above: “those features which are integral to a person's identity or ability to function socially as a person.”
Right to Development of Family Life Protected
In R (Ahmadi) v Secretary of State for the Home Department [2005] EWCA Civ 1721 (12 December 2005), the Court of Appeal noted that there is ample authority for the proposition that the obligations under Article 8 require a state not only to refrain from interference with existing life, but also from inhibiting the development of a real family life in the future. This could have an impact on a case where two brothers hoped to enjoy family life together in the future. This was not to say that where there has been no pre-existing family life and there exists only a future intention, that will be sufficient to engage Article 8: there is the world of difference between interfering with a long-established family life and merely preventing or inhibiting an opportunity in the future to develop such a family relationship.
Temporary Right to Stay in Line with Family Member’s Application
In R (Juzbasa-Tanackovic) v Secretary of State for the Home Department [2006] EWHC 1071 (Admin) the Court found that where a Claimant’s spouse had an undecided application awaiting determination by the Home Office, the right course was to conclude that there was no substantive right to remain in relation to the Claimant, but that they possessed claim to a stay or an injunction until the determination of the spouse's claim.
Underlying Situation Needs to be Examined
In MM (Article 8, family life, dependency) Zambia [2007] UKAIT 00040 (23 April 2007) the Tribunal ruled that the assessment of family life which has to be made is not one which freezes the situation in the present, without regard to the past and probable future. Hence a position of economic dependency in the UK which did not reflect an individual’s real economic position in her country of origin would not establish existing family life within the meaning of Article 8(1), as where the cause of the disruption to their ability to support themselves has been their decision, whilst here as a visitor, to seek leave to remain as a dependent relative.
Third Party Rights
The grounds of appeal within section 84 of the Nationality Immigration and Asylum Act 2002 that mention human rights do so in terms that refer only to the “appellant’s” human rights: so can the rights of others be considered within the scope of the appeal. The Tribunal have repeatedly found against this argument, but the higher courts seem more pragmatic. Reviewing the authorities in EM ( Lebanon ) v Secretary of State for the Home Department [2006] EWCA Civ 1531, Bodey J thought it seemed unclear as to the extent to which “third party rights” can or should properly be taken directly into account. In R (Ahmadi) v Secretary of State for the Home Department [2005] EWCA Civ 1721 (12 December 2005) Moses LJ noted despite a number of decisions of the Immigration Appeal Tribunal which have emphasised a requirement to look only at the appellant’s rights claimed under the European Convention, and not at the effect on a third party, an immigration judge would be bound to consider the medical practical effects of life with a brother and the consequences it has had for the control of schizophrenia.
In MS (Ivory Coast) v Secretary of State for the Home Department [2007] EWCA Civ 133 (22 February 2007) the Court of Appeal found that it may, depending on the circumstances, be disproportionate to remove a parent from the United Kingdom while contact proceedings with a child remain unresolved. In such cases the Court learned that it was the practice of the Secretary of State to grant assurances or undertakings not to remove: the Home Office argued this meant that there would be no breach of human rights. Scott Baker LJ was unimpressed, finding that an appellant was entitled to have determined whether removal from the United Kingdom with an outstanding contact application would breach s 6 of the Human Rights Act 1998, on the facts as they were when they heard the appeal, i.e. with her outstanding application for contact with her children, would have violated Article 8 of the ECHR. Where the contact hearing in the family courts was only days away, an adjournment of the immigration proceedings would be apposite.
Adults and Emotional Dependency
The Strasbourg authority Advic is often cited in human rights appeals as demanding, before family life be accepted as established between adults (other than those in a relationship), that there be more than the usual emotional dependency present. Buxton LJ in the Court of Appeal in MT (Zimbabwe) v Secretary of State for the Home Department [2007] EWCA Civ 455 noted that whilst stressing the need for an element of dependency over and above the normal between that of a parent or parent figure and adult child, that authority also stressed that everything depends on the circumstances of each case. Provided this was recognised, the nature of the relationship should be very much a matter for the judgement of the immigration judiciary.
Absence of Immigration Status as a Factor
In LD (Article 14; same-sex relationships) Brazil [2006] UKIAT 00075 the Tribunal examined whether private life could be infringed by failing to afford the appellant an immigration status (at the time unmarried partners could not extend their leave as could spouses, and it was argued this was discrimination against them). The Tribunal accepted that a lack of immigration status, because of consequences such as becoming ineligibility for a Certificate of Approval to enter into a civil partnership, liability to lose entitlement to work, and the clock stopping for the purposes of naturalization, broadly related to the appellant's "private life" in respect of his personal development and personal relationship.
Interference with Article 8 rights
In the past, it had to be recognised that, at least in principle, many people were be able to leave the United Kingdom and return here through normal immigration channels. This had an impact on the extent to which their Article 8 rights faced interference, and in many cases might defeat the human rights claim: Baljit Singh [2002] UKIAT 00660 (12 March 2002), wherein it was stated that in cases in which an appellant is faced with a removal decision that has interfered with his family life, there will always be two possible options requiring examination to establish whether there is in fact a breach of Article 8: leaving with his family or applying for entry clearance from abroad as a spouse. So any difficulties in pursuing such a course of action should be investigated closely (eg absence of entry clearance post in the country of removal coupled with a difficulty in reaching any other country).
In accordance with the law
Immigration control is in accordance with the law for Article 8 purposes, in relation to interference with family and private life as well as in relation to moral and physical integrity cases. Strasbourg tends to construe “in accordance with the law” as meaning there is a power in law to make the decision in question: and most would-be immigrants are the subject of lawful decisions in this sense, e.g. a person who does not fit into the immigration rules and is rejected as a refugee will not be able to establish any basis to come enter the country, and hence there will be a power in law to refuse them leave to enter.
For a legitimate aim
As indicated already, this tends to be automatically answered against the immigrant. Lord Bingham in Razgar in the House of Lords [2004] UKHL 27:
“19. Where removal is proposed in pursuance of a lawful immigration policy, question (4) will almost always fall to be answered affirmatively. This is because the right of sovereign states, subject to treaty obligations, to regulate the entry and expulsion of aliens is recognised in the Strasbourg jurisprudence (see Ullah and Do, para 6) and implementation of a firm and orderly immigration policy is an important function of government in a modern democratic state. In the absence of bad faith, ulterior motive or deliberate abuse of power it is hard to imagine an adjudicator answering this question other than affirmatively.”
The European Court in Bensaid v United Kingdom (E. Ct. H.R. 6 February 2001): speaking of interferences compelled by the consequences of immigration control:
“… the Court considers that such interference may be regarded as complying with the requirements of the second paragraph of Article 8, namely as a measure 'in accordance with the law', pursuing the aims of the protection of the economic well being of the country and the prevention of disorder and crime, as well as being 'necessary in a democratic society' for those aims.”
“(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.”
Article 8, the courts sometimes say, posits five questions which must be answered in turn in order to determine whether there is a breach of the obligation it creates.
(i) Has private or family life been established?
(ii) Has there been an interference with the right to respect for such private or family life?
(iii) Is any such interference is in accordance with the law?
(iv) Is any such interference necessary in a democratic society as being in the interests of one of the legitimate aims set out in Article 8's second paragraph? Immigration control is accepted as being such an aim, so absent a case of bad faith, it is difficult to see this question ever being answered in favour of an immigrant.
(v) Are the means chosen necessary in a democratic society, i.e. are they proportionate to the ends sought?
In general Article 8 cases arise in the context of immigration law when the right is first established in the United Kingdom and it is expulsion itself, rather than it’s later consequences, which creates the interference with the human right.
However, a flagrant breach of Article 8 based on circumstances entirely subsisting in a country of origin could prevent a removal. Such might be the case, for example, if an individual’s private life in terms of their sexual identity was threatened or, as it was unsuccessfully argued in Bensaid v UK (2001) 33 EHRR 10 on the facts of that case, that a person’s mental health would be so destabilised by the absence of treatment abroad that their moral and physical integrity would be destroyed.
Establishment of private and family life
Family relationships
Family life can include various relationships. Marckx v Belgium (1979) 2 EHRR 330:
“The Court concurs entirely with the Commission’s established case law on a crucial point, namely that Article 8 (art. 8) makes no distinction between the ‘legitimate’ and the ‘illegitimate’ family. Such a distinction would not be consonant with the word ‘everyone’, and this is confirmed by Article 14 (art. 14) with its prohibition, in the enjoyment of the rights and freedoms enshrined in the Convention, of discrimination grounded on ‘birth.’
...‘Family life’, within the meaning of Article 8 (art. 8), includes at least the ties between near relatives, for instance those between grandparents and grandchildren, since such relatives may play a considerable part in family life.”
In Sen v Netherlands (2003) 36 EHRR 81, the European Court of Human Rights made it very clear that a biological parent-child relationship will almost always give rise to family life:
‘The respondent Government acknowledges that the existence of “family life” between the applicants has been established. The Court reiterates in this regard that a child born of a marital union is ipso jure part of that relationship; hence from the moment of the child’s birth and by the very fact of it, there exists between him and his parents a bond amounting to family life (Gul v. Switzerland (1996) 22 EHRR 93, para 32; Boughanemi v. France (1996) 22 EHRR 228, para 35) which subsequent events cannot break save in exceptional circumstances (Berrehab v. Netherlands (1989) 11 EHRR 322, para 21; Ahmut v. Netherlands (1997) 24 EHRR 62, para 60).’
In Singh v ECO New Delhi [2004] EWCA (Civ) 1075 the Court of Appeal examined Strasbourg case law which shows that family and private life is a question of fact and can cover a range of diverse situations:
“… the starting point of the law is a tolerant indulgence to cultural an
d religious diversity and an essentially agnostic view of religious beliefs … such is the diversity of forms that the family takes in contemporary society that it is impossible to define, or even to describe at anything less than almost encyclopaedic length, what is meant by "family life" for the purposes of Article 8. The Strasbourg court, as I have said, has never sought to define what is meant by family life. More importantly for present purposes, and this is a point that requires emphasis, the Strasbourg court has never sought to identify any minimum requirements that must be shown if family life is to be held to exist. That is because there are none….
...The existence or non-existence of "family life" for the purposes of Article 8 is essentially a question of fact depending upon the real existence in practice of close personal ties".
The ECtHR in Berrehab v Netherlands (1988) 11 EHRR 322 held that cohabitation, whilst strong evidence, is not an essential feature of family life:
“The Court likewise does not see cohabitation as a sine qua non of family life between parents and minor children. It has held that the relationship created between the spouses by a lawful and genuine marriage such as that contracted by Mr. and Mrs. Berrehab has to be regarded as ‘family life’ (see the Abdulaziz, Cabales and Balkandali judgment of 28 May 1985, Series A no. 94, p. 32, § 62). It follows from the concept of family on which Article 8 (art. 8) is based that a child born of such a union is ipso jure part of that relationship; hence, from the moment of the child’s birth and by the very fact of it, there exists between him and his parents a bond amounting to ‘family life’, even if the parents are not then living together ... Subsequent events, of course, may break that tie ...”
But family life will not necessarily be accepted to be established between adults (e.g. adult children and their parents, adult siblings), see Advic v United Kingdom 00025525/94 (6 September 1995):
“Although this will depend on the circumstances of each particular case, the Commission has already considered that the protection of Article 8 (Art. 8) did not cover links between adult brothers who had been living apart for a long period of time and who were not dependent on each other (No. 8157/78, Dec. 5.12.79, unpublished). Moreover, the relationship between a parent and an adult child would not necessarily acquire the protection of Article 8 (Art. 8) of the Convention without evidence of further elements of dependency, involving more than the normal, emotional ties (No. 10375/83, Dec. 10.12.84, D.R. 40 p. 196).”
Private life
The concept of private life as protected by Article 8, has repeatedly been held to be a very broad one. In Niemietz v Germany (1992) 16 EHRR 97 the EcTHCR said as follows at para 29:
‘The Court does not consider it possible or necessary to attempt an exhaustive definition of the notion of "private life". However, it would be too restrictive to limit the notion to an "inner circle" in which the individual may live his own personal life as he chooses and to exclude therefrom entirely the outside world not encompassed within that circle. Respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings.’
In the House of Lords case of Razgar, Lord Bingham said the following about the nature of private life (paragraph 9):
‘This judgment establishes, in my opinion quite clearly, that reliance may in principle be placed on article 8 to resist an expulsion decision, even where the main emphasis is not on the severance of family and social ties which the applicant has enjoyed in the expelling country but on the consequences for his mental health of removal to the receiving country. The threshold of successful reliance is high, but if the facts are strong enough article 8 may in principle be invoked. It is plain that "private life" is a broad term, and the Court has wisely eschewed any attempt to define it comprehensively. It is relevant for present purposes that the Court saw mental stability as an indispensable precondition to effective enjoyment of the right to respect for private life. In Pretty v United Kingdom (2002) 35 EHRR 1, paragraph 61, the Court held the expression to cover "the physical and psychological integrity of a person" and went on to observe that
"Article 8 also protects a right to personal development, and the right to establish and develop relationships with other human beings and the outside world."
Elusive though the concept is, I think one must understand "private life" in article 8 as extending to those features which are integral to a person's identity or ability to function socially as a person. Professor Feldman, writing in 1997 before the most recent decisions, helpfully observed ("The Developing Scope of Article 8 of the European Convention on Human Rights", [1997] EHRLR 265, 270):
"Moral integrity in this sense demands that we treat the person holistically as morally worthy of respect, organising the state and society in ways which respect people's moral worth by taking account of their need for security."’
The concept is clearly an exceedingly broad one. In Janjanin v Secretary of State for the Home Department [2004] EWCA Civ 448 the Court of Appeal did not refuse to recognise that valuable and responsible work in the National Health Service could constitute private life. Equally someone who made a great contribution to the community outside work, or who has close relationships in the UK such as being someone’s carer, might be able to build a case.
Article 8 does not only deal with strict family life scenarios. It may also prevent a person’s removal where their private life in terms of their mental (or perhaps physical) health would be affected seriously whilst falling short of Article 3 ill-treatment, however such a breach would need to be flagrant - see Ullah (HL):
“Another possible field of application could be the expulsion of an alien homosexual to a country where, short of persecution, he might be subjected to a flagrant violation of his article 8 rights. In Z v Secretary of State for the Home Department [2002] Imm AR 560 this point came before the Court of Appeal. Schiemann LJ (with whom the other members of the court agreed) was not prepared to rule out such an argument. In my view he was right not to do so. Enough has been said to demonstrate that on principles repeatedly affirmed by the ECtHR article 8 may be engaged in cases of a real risk of a flagrant violation of an individual's article 8 rights.”
The Strasbourg court’s opinion in Bensaid v UK (2001) 33 EHRR 10 was that:
"Not every act or measure which adversely affects moral or physical integrity will interfere with the right to respect to private life guaranteed by Article 8. However, the Court's case law does not exclude that treatment which does not reach the severity of Article 3 treatment may nonetheless breach Article 8 in its private life aspect where there are sufficiently adverse affects on physical and moral integrity. Private life is a broad term not susceptible to exhaustive definition. The Court has already held that elements such as gender identification, name and sexual orientation and sexual life are important elements of the personal sphere protected by Article 8. Mental health must also be regarded as a crucial part of private life associated with the aspect of moral integrity. Article 8 protects a right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world. The preservation of mental stability is in that context an indispensable precondition to effective enjoyment of the right to respect for private life.... Even assuming that the dislocation caused to the applicant by removal from the United Kingdom where he has lived for the last 11 years was to be considered by itself as affecting his private life, in the context of the relationships and support framework which he enjoyed there, the Court considers that such interference may be regarded as complying with the requirements of the second paragraph of Article 8, namely as a measure "in accordance with the law", pursuing the aims of the protection of the economic well being of the country and the prevention of disorder and crime, as well as being "necessary in a democratic society" for those aims."
See the more abbreviated definition from the House of Lords in Razgar [2004] UKHL 27 quoted above: “those features which are integral to a person's identity or ability to function socially as a person.”
Right to Development of Family Life Protected
In R (Ahmadi) v Secretary of State for the Home Department [2005] EWCA Civ 1721 (12 December 2005), the Court of Appeal noted that there is ample authority for the proposition that the obligations under Article 8 require a state not only to refrain from interference with existing life, but also from inhibiting the development of a real family life in the future. This could have an impact on a case where two brothers hoped to enjoy family life together in the future. This was not to say that where there has been no pre-existing family life and there exists only a future intention, that will be sufficient to engage Article 8: there is the world of difference between interfering with a long-established family life and merely preventing or inhibiting an opportunity in the future to develop such a family relationship.
Temporary Right to Stay in Line with Family Member’s Application
In R (Juzbasa-Tanackovic) v Secretary of State for the Home Department [2006] EWHC 1071 (Admin) the Court found that where a Claimant’s spouse had an undecided application awaiting determination by the Home Office, the right course was to conclude that there was no substantive right to remain in relation to the Claimant, but that they possessed claim to a stay or an injunction until the determination of the spouse's claim.
Underlying Situation Needs to be Examined
In MM (Article 8, family life, dependency) Zambia [2007] UKAIT 00040 (23 April 2007) the Tribunal ruled that the assessment of family life which has to be made is not one which freezes the situation in the present, without regard to the past and probable future. Hence a position of economic dependency in the UK which did not reflect an individual’s real economic position in her country of origin would not establish existing family life within the meaning of Article 8(1), as where the cause of the disruption to their ability to support themselves has been their decision, whilst here as a visitor, to seek leave to remain as a dependent relative.
Third Party Rights
The grounds of appeal within section 84 of the Nationality Immigration and Asylum Act 2002 that mention human rights do so in terms that refer only to the “appellant’s” human rights: so can the rights of others be considered within the scope of the appeal. The Tribunal have repeatedly found against this argument, but the higher courts seem more pragmatic. Reviewing the authorities in EM ( Lebanon ) v Secretary of State for the Home Department [2006] EWCA Civ 1531, Bodey J thought it seemed unclear as to the extent to which “third party rights” can or should properly be taken directly into account. In R (Ahmadi) v Secretary of State for the Home Department [2005] EWCA Civ 1721 (12 December 2005) Moses LJ noted despite a number of decisions of the Immigration Appeal Tribunal which have emphasised a requirement to look only at the appellant’s rights claimed under the European Convention, and not at the effect on a third party, an immigration judge would be bound to consider the medical practical effects of life with a brother and the consequences it has had for the control of schizophrenia.
In MS (Ivory Coast) v Secretary of State for the Home Department [2007] EWCA Civ 133 (22 February 2007) the Court of Appeal found that it may, depending on the circumstances, be disproportionate to remove a parent from the United Kingdom while contact proceedings with a child remain unresolved. In such cases the Court learned that it was the practice of the Secretary of State to grant assurances or undertakings not to remove: the Home Office argued this meant that there would be no breach of human rights. Scott Baker LJ was unimpressed, finding that an appellant was entitled to have determined whether removal from the United Kingdom with an outstanding contact application would breach s 6 of the Human Rights Act 1998, on the facts as they were when they heard the appeal, i.e. with her outstanding application for contact with her children, would have violated Article 8 of the ECHR. Where the contact hearing in the family courts was only days away, an adjournment of the immigration proceedings would be apposite.
Adults and Emotional Dependency
The Strasbourg authority Advic is often cited in human rights appeals as demanding, before family life be accepted as established between adults (other than those in a relationship), that there be more than the usual emotional dependency present. Buxton LJ in the Court of Appeal in MT (Zimbabwe) v Secretary of State for the Home Department [2007] EWCA Civ 455 noted that whilst stressing the need for an element of dependency over and above the normal between that of a parent or parent figure and adult child, that authority also stressed that everything depends on the circumstances of each case. Provided this was recognised, the nature of the relationship should be very much a matter for the judgement of the immigration judiciary.
Absence of Immigration Status as a Factor
In LD (Article 14; same-sex relationships) Brazil [2006] UKIAT 00075 the Tribunal examined whether private life could be infringed by failing to afford the appellant an immigration status (at the time unmarried partners could not extend their leave as could spouses, and it was argued this was discrimination against them). The Tribunal accepted that a lack of immigration status, because of consequences such as becoming ineligibility for a Certificate of Approval to enter into a civil partnership, liability to lose entitlement to work, and the clock stopping for the purposes of naturalization, broadly related to the appellant's "private life" in respect of his personal development and personal relationship.
Interference with Article 8 rights
In the past, it had to be recognised that, at least in principle, many people were be able to leave the United Kingdom and return here through normal immigration channels. This had an impact on the extent to which their Article 8 rights faced interference, and in many cases might defeat the human rights claim: Baljit Singh [2002] UKIAT 00660 (12 March 2002), wherein it was stated that in cases in which an appellant is faced with a removal decision that has interfered with his family life, there will always be two possible options requiring examination to establish whether there is in fact a breach of Article 8: leaving with his family or applying for entry clearance from abroad as a spouse. So any difficulties in pursuing such a course of action should be investigated closely (eg absence of entry clearance post in the country of removal coupled with a difficulty in reaching any other country).
In accordance with the law
Immigration control is in accordance with the law for Article 8 purposes, in relation to interference with family and private life as well as in relation to moral and physical integrity cases. Strasbourg tends to construe “in accordance with the law” as meaning there is a power in law to make the decision in question: and most would-be immigrants are the subject of lawful decisions in this sense, e.g. a person who does not fit into the immigration rules and is rejected as a refugee will not be able to establish any basis to come enter the country, and hence there will be a power in law to refuse them leave to enter.
For a legitimate aim
As indicated already, this tends to be automatically answered against the immigrant. Lord Bingham in Razgar in the House of Lords [2004] UKHL 27:
“19. Where removal is proposed in pursuance of a lawful immigration policy, question (4) will almost always fall to be answered affirmatively. This is because the right of sovereign states, subject to treaty obligations, to regulate the entry and expulsion of aliens is recognised in the Strasbourg jurisprudence (see Ullah and Do, para 6) and implementation of a firm and orderly immigration policy is an important function of government in a modern democratic state. In the absence of bad faith, ulterior motive or deliberate abuse of power it is hard to imagine an adjudicator answering this question other than affirmatively.”
The European Court in Bensaid v United Kingdom (E. Ct. H.R. 6 February 2001): speaking of interferences compelled by the consequences of immigration control:
“… the Court considers that such interference may be regarded as complying with the requirements of the second paragraph of Article 8, namely as a measure 'in accordance with the law', pursuing the aims of the protection of the economic well being of the country and the prevention of disorder and crime, as well as being 'necessary in a democratic society' for those aims.”
