The Rights of Immigrants: The European Convention on Human Rights

It became unlawful for any public authority to act in a way that is incompatible with an individual’s rights under the Convention. ‘Public authority’ in this context includes not only the Home Office and Immigration Officers, but may also include private companies fulfilling a ‘public’ function. The most obvious example in the context of immigration and asylum law are private companies charged with the running of immigration detention centres or privately contracted interpreters employed in asylum interviews.

The protection provided by the Convention applies to every person within the jurisdiction of the UK authorities, irrespective of whether they have leave to enter or remain in the UK. Most importantly, it includes those who have been granted temporary admission, which means that even though they are physically present in the UK, in law they are not deemed to have actually ever been given permission to enter the UK.

Consequently all immigration decisions taken by the Secretary of State, Immigration Officers or entry clearance officers after the 2 October 2000 are subject to a separate right of appeal and/or cause of action for breach of the Convention. Case law makes it clear that nobody is to be deported or removed if such action would be contrary to the UK’s obligations under Article 3 of the Convention.

Further under the Nationality, Immigration and Asylum Act 2002, although there is no free standing appeal, human rights can be introduced as a discrete ground of appeal when challenging any immigration decision, and where such a decision is held to be incompatible with the UK’s convention obligations, humanitarian protection or discretionary leave to enter or remain will ordinarily be extended, although the Immigration Rules do not provide for it.

The Principal Rights

Article 3 of the Convention prohibits torture or inhuman or degrading treatment or punishment. This provision not only protects against torture, inhuman or degrading treatment or punishment inflicted by British public authorities but also protects against the removal of any individual to a country where there is a real risk of that individual suffering treatment that would amount to torture or inhuman or degrading treatment or punishment. Unlike the CSR, the protection offered by Article 3 is absolute and applies regardless of the individual’s immigration history or criminal record.

When seeking to determine the legality of a decision by the Home Office to detain a person subject to immigration control, Article 5 of the Convention, which protects the right to liberty and security of the person, may be invoked. The courts have found the UK’s Immigration Detention procedures, as set down in the Home Offices ‘Operational Guidance Manual’, to be generally compatible with Article 5, and can properly be regarded as representing the Secretary of State’s view of what is proportionate. However, by necessary inference detention in contravention of that policy must be regarded as a breach of Article 5 on the grounds that it is disproportionate.

Article 8 provides the right to respect for private and family life. The concept of ‘family’ in the context of Article 8 is wide and includes spouses, children (whether legitimate or illegitimate), and relatives in the ascending line, such as grandparents, aunts and uncles and even foster parents, provided the emotional ties between family members can be shown to be very strong. In relation to children, even natural fathers who have had little or no contact with their children since their birth can enjoy a right to family life with those children. Although Article 8 is particularly important in the case of removal or refusal of admission of a spouse or parents (or other family member) of an individual who has a right of residence in the UK, there are two important notes of caution:

Even though there is a right to respect for family life this, in principle, does not extend to a right to respect for the choice of marital or family home. Where there is an alternative country in which the spouses/family can reside and there are no ‘insurmountable obstacles’ to relocation and settlement there, or where a person subject to immigration control could return to the country of origin and obtain entry clearance as a family member in the ordinary way without risk or excessive delay, declining residence in the UK may not amount to an interference with the right to respect for family life.

Unlike Article 3, the protection of the right to respect for private and family life is not absolute. Interferences can be justified in law provided that the interference is prescribed by law, in the pursuit of a legitimate aim and proportionate. Any decision involving Article 8 therefore includes a sometimes difficult balancing act between the different interests involved.

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