Immigration Law

Immigration Law

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Immigration Law

Research Methodology

The research design will be based on grouping the research paper into the following subjects. Firstly, this paper will analyse the Evolution of Article 8 of European Convention on Human Rights 1950 in relation to immigration and asylum cases. It shall further discuss the Interpretation and Application of Article 8 of the European Convention on Human Rights 1950 in relation to privacy rights. Under the interpretation, it will focus on the nature of Article 8 of the European Convention on Human Rights 1950 and how the wording has been subjected to various discussions. The paper will also assess the relationship between the current local immigration law and Article 8 and European Convention on Human Rights 1950. Additionally, it will look at how the 1998 Human Rights Act appreciates the European Convention on Human Rights 1950 through its operations.

The area of study has relied on secondary data, which will mostly be theoretical, notably from books and journals.



The Evolution of Article 8 of European Convention on Human Rights 1950 in resisting deportation

The Right to Respect Family Life is provided for under Article 8 of the European Convention on Human Rights (ECHR). The Article provides that everyone has the right to respect for his private and family life, home and correspondence.[1] It further provides that the exercise of this right shall only limited by lawful interference relating to national among other related provisions.[2] However, this right does not guarantee a foreigner the freedom to enter and live in any country. A county has the right to expel a foreigner in a bid to deter crime, maintain public order and public health. This expulsion amounts to deportation, a subject that has faced massive opposition. In an attempt to deport a refugee or an asylum seeker, a state that has ratified the ECHR must consider the family of the person in question. However, there must be lawful justification for denial of the right to respect of family life as far as is necessary.[3]

In order to claim this right, one must be able to establish the existence of family life.[4] In the case of ZH v SSHD,[5] the court held that family life must be constituted as a whole unit. As a result, the family extends to children who should not be punished for their parents’ offence. Further, the court has stated that a deportation that may result in the severance of a family relationship ought to be stopped.[6] In the case of Beoku-Betts,[7] family lifewas ruled to includethe whole sum of individual parts and not some discrete parts of the whole. The scope was further widened in the case of Lebbink v The Netherlands[8], to include persons who have close ties. Therefore, the respect of family life is not dependent on a particular model of family ties but rather an applicant’s evidence. As a result, as long as a person can prove that there is a likelihood of experiencing any separation from family, the deportation may be prevented. Additionally, the interpretation of family life has extended to potential family relations, especially if the proposed family is a type of relation recognized by law.[9] This provision also extends to the principle of dependency.[10]

States have had a difficulty in applying Article 8 of the European Convention on Human Rights (ECHR) in their domestic forum.[11] The application has been subjected to a lot of controversy especially if the case involves deportation of a foreign previously convicted individual. The individual state policies have been reluctant to admit ex-convicts into their jurisdictions through restrictive laws.[12]However, the ECHRtribunal has come up strong in implementing the provisions of the convention to have states fulfill their obligations under it. A valid expulsion under Article 8(2) should consider the seriousness of the crime that has been committed and the time that has elapsed since the crime was committed.[13]The principle used to consider the seriousness of the crime is the proportionality principle.[14]Section 177C states that it is in the interest of the public for a persistent offender, of a person who has been convicted for more than twelve months, or one who has committed a serious offence to be deported. However, the term serious offence is no defined under the Act.[15]

Even so, the government has taken various steps to increase classification of people who may be subject to deportation. The mode of choice has been through the establishment of such terms as what it deems as ‘non-conducive’ to the public good.[16] The good has been defended as involving the public interest which, must always be given credence. Section 56 of the Immigration, Asylum and Nationality Act 2006, grants the Home Secretary power tostrip dual nationals of their UK citizenship, to make them vulnerable to deportation in the public interest.[17] Section 177B(4) of this Act states that in considering public interest, the relationship formed between the illegal immigrant and the locals is immaterial. However, if the relationship has resulted in a parental relationship with a child who is a British citizen, it would not be in the best interests of that child to move out of the country.

Due to the government’s rigidity, the ECHR tribunal has also increased the scope for preventing deportation.  For example, inStrasbourg case,[18] a convict to be sent to Somalia petitioned against the deportation because of the civil war in the place.The civil war, and not fear of being persecuted by the government was his line of claim. Under this case, Article 8

Further, due to the provision on the right to family life under Article 8, deportation proceedings have faced a major blow. In a 2008 case,[19] a mother who was under a threat of being separated from her son if she went back to Lebanon was able to prevent her deportation. Later in 2009, the House of Lords sought to fight against deportation on grounds of human rights. Even though previously, the scope of human rights protection under a deportation claim was based on Article 3 of the ECHR[20], Lord Hope noted that human rights mean much more than just protection from torture inhuman and degrading treatment.[21] For instance, a claim for fair trial is sufficient in quashing a deportation claim.[22]

Thereafter, the scope was widened to even protect other offenders. In May 2010, in the Gurungcase,[23] the Immigration Tribunal held that  a  homicide  offence  is  not  serious enough  to  warrant  automatic  deportation  under  the UK Borders  Act  2007.  The increase in application of the scope provided under Article 8 is meant to protect the rights of individuals rather than to punish the offenders.

Before 2012, the provision of Article 8 of ECHR would be made as independent applications in deportation suits. However, the claim was under the discretionary powers of  the UK Border Agency. As a result, breaching an individual’s rights provided under that article was not an issue. However,the application could be raised in appeals deportation since the Immigration laws protect individual’s human rights, including the right to family.[24] Besides, section 32 of the UK Borders Act of 2007 has provisions foreign national offenders in some instances. For example, the foreigner must have been convicted and sentenced to at least one year or more, the person is qualified for deportation.

In relation to protection of refugees and asylum seekers, the 2014 legislation[25] invokes the provisions of the Immigration and Asylum Act, which incorporates the UK obligations under the Refugee Convention.[26] The provisions under the convention prohibit forceful deportation contravening their rights under the ECHR or the 1951 Geneva Convention Refugees status.[27] The non-refoulment principle under Art 33 further prohibits putting a refugee’s life in danger through forceful return home unless the refugee is also a fugitive of the law. However, the Act attempts to protect the right to family life under Part 5. This inclusion somewhat cures instances of miscarriage of justice occasioned by schedule 4 of the Immigration and Asylum Act of 1999.[28]

In relation to the meaning of private life, the court in X (2) Y v the Netherlands[29]came up with a two-way model approach. The court stated that for interference to be protected, it ought to correspond to a pressing social need, or be proportionate to a legitimate aim that is being pursued. Therefore, the government should not only avoid interference with the private life of a family but also prevent other private individuals from the same. However, in case of interference, it should not be arbitrary but rather be in a manner that secures the respect of the private life.[30]

Article 3 of the ECHR provides for the non-derogable right of freedom from torture, inhumane and degrading treatment. The UK courts have tried as much as possible to ensure that the provision is applied in their jurisdictions. For instance, in Chahal v United Kingdom[31], the UK government endeavored to deport MrChahal, an Indian native of Sikh origin, to India stating that hisparticipation in Sikh separatist activities comprised a threat to the UK national security. MrChahalargued that sending him back to India, would see him tortured by the Indian authorities. [32]

The ECtHR upheld MrChahal’sapplicationbecause Article 3 of the ECHR prohibited deporting any person back to a country where that person is likely to face a risk of torture even if the person is ruled as a they faced a real risk of torture, even if that person was deemed to pose a threat to national security threat.[33]

Because Article 3 ECHR[34] cannot be derogated from, the House of Lords in A and others v Secretary of State for the Home Department[35] held that the government’s derogation from Article 5 ECHR was unlawful.  In Agiza v Sweden,[36] the UNCAT stated that forcing asylum seekers back to Egypt where they were killed was a breach of state’s obligation to a convention.

In conclusion, the interpretations of Article 8 of the ECHR by the courts and the ECtHR have seen massive changes in the scope of its application in order to meet the changing societal needs. Besides, the interpretation has widened the scope of the meaning of its wording in order to protect as many persons as possible in order to limit the violations of human rights likely to occur due to limiting its application to specific issues.



Abdulaziz, Cabales and Balkandali v. The United Kingdom(1985) 7 EHRR 471

X (2) Y v the Netherlands (1985) 8 EHRR 235

Genovese v. Malta [2012] 

Abdulaziz, Cabales&Balkandali v United Kingdom

Berrehab v The Netherlands (1988)11 EHRR 322

Kerkhoven v The Netherlands (1992)

 SeferDjali v IAT[2003]

R (on the application of) v Immigration Appeal Tribunal, Court of Appeal – Civil Division, June 10, 2004, [2004] EWCACiv 810

Othman (Abu Qatada) v. The United Kingdom Application no. 8139/09, Council of Europe: European Court of Human Rights

R v Home Secretary ex parte Isiko, CA [2001] 1 FLR 930

Chahal v United Kingdom [1996] ECHR 54, (1996) 23 EHRR 413,

A and others v Secretary of State for the Home Department [2004] UKHL 56

Agiza v Sweden Communication No. 233/2003, U.N. Doc. CAT/C/34/D/233/2003 (2005).


G Nice, Human Rights: the Law (Gresham Press London 2014) 45

D Hoffman, and J Rowe Human Rights in the UK: An Introduction to the Human Rights Act 1998 3rd edition. (Harlow: Pearson Longman, 2010)

G Clayton Immigration and Asylum Law (London Wildy& Sons 2014)

N Blake and LFransman, Immigration, Nationality and Asylum under the Human Rights Act (Butterworths, London 1999) 50-70

David Harris et al., Law of the European Convention on Human Rights (OUP, 1995) 55-96

Jacobs & White, The European Convention on Human Rights 49-69 (Butterworths, 1996)


<>accessed 13th April, 2015

<> accessed 13th April, 2015


DL KersonThe European Convention for the Protection of Human Rights and Fundamental Freedoms 49 CLR 1 (8)

J Lenart, ‘Fortress Europe’: Compliance of the Dublin II Regulation with the European Convention for the Protection of Human Rights and Fundamental Freedoms 28 IEML 75

P Duffy, Article 3 of the European Convention on Human Rights (1986) 32 ICLQ 316


Immigration Act 2014

Human Rights Act of 1998

The 1951 Convention on the Status of Refugees

[1] Everyone has the right to respect for his private and family life, his home and his correspondence.

[2] Article 8(2) of the ECHR states that 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.

[3] The right to expel a foreigner is not absolute. A state must be able to justify an expulsion. However, a claimant must also be able to establish interference with family life, hence family has to be established first. The fact that what constitutes a family may differ in different jurisdictions, the same may be difficult. The Council of Europe, the Respect of Family Life

[4]Edore v Secretary of State for the Home Department [2003] EWCACiv 716

[5]ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4

[6]M*Croatia[2004] UKIAT 00024

[7]Beoku-Betts (FC) v Secretary of State for the Home Department [2008] UKHL 3 9,

[2009] 1 AC 115 para 4

[8](2004) 4 0 EHRR 4 17 at para 3 6.

[9]Singh v ECO-Delhi [2004] EWCACiv 1075 paras 3 8 and 77, an asylum seeker who was engaged to a British citizen was protected under this provision.

[10]The principle was held in the case of Slivenko et al v Latvia as involving proof of being separated from core members of the family, or that the applicant is the core member of the family who is depended upon.

[11]Geoffrey Nice, Human Rights: the Law (2014) Gresham College

[12] House of Commons Library Standard note SN03979 Deportation of foreign national ex-offenders

[13]R v Home Secretary ex parte Isiko, CA [2001] 1 FLR 930;

[14] The Proportionality principle states that the punishment must fit the crime. The principle is reviewed on a case to case basis since inference to the proportionality is dependent on facts of a specific case.

[15]Immigration, Asylum and Nationality Act 2006

[16]Abdulaziz, Cabales and Balkandali v. The United KingdomApplication no. 9214/80; 9473/81; 9474/81

[17] Under this section, public interest includes the reduction of the taxpayers burden and the ability of the applicant to integrate into the society.



[20]No one shall be subjected to torture or to inhuman or degrading treatment or punishment

[21] The Strasbourg Court in Abu Qatada’s case extended the scope to include infringements on the right to be heard such as freezing accounts making it impossible for an offender to access legal services

[22] Abu’s case (n7)

[23]Gurung, R (on the application of) v Immigration Appeal Tribunal, Court of Appeal – Civil Division, June 10, 2004, [2004] EWCACiv 810

[24] Abu Qatada (n7 above)

[25]Immigration Act of 2014

[26]The 1951 Convention on the Status of Refugees

[27] The ‘Human Rights Futures Project’ at the London School of Economics has produced a briefing on Deportation and the right to respect for private and family life under Article 8 which provides a summary of case law (as at February 2013).

[28]In the case of Huang (FC) v. Secretary of State for the Home Department, the Immigration Appeal Tribunal denied the applicant leave to enter and remain in the UK because the Immigration Rules had no provisions on protection of family ties per se.

[29](1985) 8 EHRR 235

[30] Para 23

[31] [1996] ECHR 54, (1996) 23 EHRR 413,

[32]He further argued that the fact that he had not been granted fair hearing breached his constitutional rights. Additionally, the Internal Home office set up to hear appeals like his could base its decision on secret evidence and make recommendations to the Home Secretary, who had power to dismiss them.

[33]The decision saw the disbandment of the internal Home Office review panel as an appellate institution for any forced deportation decisions and the development of the Special Immigration Appeals Commission or ‘SIAC’.

[34] The Article prohibits exercise of torture, inhuman and degrading treatment against anyone

[35] [2004] UKHL 56

[36]Communication No. 233/2003, U.N. Doc. CAT/C/34/D/233/2003 (2005).

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