Article 8 of the European Convention on Human Rights (ECHR) protects a person’s right to respect for their private and family life. Article 8 is a right that is concerned with an individual’s need to live and develop in a social environment and to maintain relationships with others. It is enshrined in UK law by the Human Rights Act 1998.
It is important to note that the European Convention on Human Rights is not the same as the European Union. Leaving the European Union will not mean that the UK stops being a signatory to the European Convention on Human Rights. For further information see the Rights Info website.
Article 8 is a qualified right, which means that it can be interfered with by a public authority, such as the Home Office, in certain circumstances. Article 8(2) provides 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.
Immigration control is generally accepted to fall within the reasons specified in the convention. However, a public authority may only interfere with a person’s right to respect for private and family life if the interference is proportionate.
Article 8 is relevant to many immigration cases. A decision by the Home Office may impact a person’s Article 8 rights to respect for private or family life in many situations but is likely to be of particular importance in cases where:
- a person has been in the UK for a long time;
- a person has family in the UK; or
- a person is a British citizen or someone with settled status (indefinite leave to remain) who is entitled to be joined in the UK by their family.
Article 8 has particular significance in cases involving children because of the importance of family life to a child’s development and welfare, and in cases where a child has grown up or spent most of their life in the UK.
The Immigration Rules set out what the Home Office believes are the parameters of an Article 8 claim. The Rules also set out the process applicants must follow and the requirements that the Home Office will apply when it makes decisions on applications under Article 8.
However, it is important to note that the Immigration Rules only reflect the UK government’s interpretation and do not reflect the established case law on Article 8. Over many years, domestic and the courts have made clear in various judgments that the introduction of the new rules does not affect the previously established principles on Article 8, which still apply. The new rules and applications within or outside the Immigration Rules continue to be the subject of litigation and it is important that anyone considering making an application under Article 8 obtains legal advice on their rights and prospects.
Legal aid is not available in most immigration cases, unlike asylum or protection cases where it is still available. Immigration cases include those based on Article 8 of the European Convention on Human Rights.
Where someone has an asylum or other kind of protection claim (i.e. they fear return) they may raise Article 8 alongside this protection claim. They will still be eligible for asylum legal aid. However, that person may have to pay the fees to an immigration solicitor or adviser to advise and represent in relation to the Article 8 arguments in the claim. Many unaccompanied children will have protection claims and will therefore still be eligible for asylum legal aid. In the case of a child looked after by a local authority or a care leaver with a pure immigration case, the responsibility for securing legal representation will fall to the local authority, which will have to pay for legal representation for the child or young person.
