Article 8 differs from Article 3 in that it is a qualified right, and thus the first part of the Article must be balanced against the competing interests in the second part of the Article. This is the proportionality exercise.
The test of proportionality has been examined by the courts and for some time the Tribunal adopted the view of Lord Bingham in R v SSHD ex parte Razgar [2004] UKHL 27 (‘Razgar’) that a case had to be found to be ‘truly exceptional’ in order to succeed. However this test was held to be incorrect by the House of Lords in Huang and Kashmiri v SSHD [2007] UKHL 11 (‘Huang and Kashmiri’).
Examples of cases involving Article 8 will most commonly arise in the context of family relationships but it should be noted that it also encompasses the area of physical and mental integrity e.g. where a person’s physical or mental integrity will be seriously affected in circumstances that fall short of a breach of Article 3 (see Bensaid v UK (2001) 33 EHRR 10; Razgar).
Who is a family member under Article 8?
The Convention itself does not provide a clear definition of the family, or family life, and definitions have instead developed through case law. As such they have altered dynamically over time and with changing societal perceptions of the nature of ‘family.’
Family life can include various relationships and may be diverse (see Marckx v Belgium [1979] 2 EHRR 330; Singh v ECO New Delhi [2004] EWCA (Civ) 1075).
Children and parents are presumed to share a family life, as held in Ginger Lebbink v Netherlands (2004) 2 FLR 463.
Spouses and partners are presumed to share a family life, as held in Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471. There is no specific period of cohabitation required for a family life to exist.
Whose rights must be considered?
In the balancing exercise, a decision maker must give appropriate weight to the rights of all persons affected, not only the applicant. For example, if the applicant is not British, but has a British spouse and children, their Article 8 rights would also be interfered with by a refusal, so they should also be considered. The House of Lords said as much in Beoku-Betts v Secretary of State for the Home Department [2008] UKHL 39.
The range of people whose rights should be considered may be broadly construed. For example, an applicant may be relying on a relationship with a British spouse. That spouse, however, may have children from a previous relationship, whose rights also need to be considered; and they may have contact with their other parent, whose rights might also therefore carry weight.
The best interests of children
The Supreme Court, in ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 (1 February 2011), considered the weight to be given to the best interests of children who are affected by the decision to remove or deport one or both of their parents from the UK.
Lady Hale’s leading Judgment concluded that the interests of children in a case should be given significant weight (although this could be outweighed by other considerations, such as serious criminal behaviour by a parent).
Where a child has spent significant time in the UK, they will have formed their own private lives here, through immersion in the culture, education, and other ties. It is therefore sometimes possible to argue that even if a parent has no other basis to remain in the UK, it would now be disproportionate to remove the child, and therefore the parent should be allowed to remain with the child.
This raises the question of how long a child must live in the UK to establish their own private life such that they should normally be removed. In Azimi-Moayed and others (decisions affecting children; onward appeals) v. the Secretary of State for the Home Department [2013] UKUT 00197(IAC), the Upper Tribunal took the view that:
- A child who has accrued seven years’ worth of private life in the UK should benefit from the protection of Article 8 ECHR; but
- The first three years of life should not be taken to count towards this period, because at that age – essentially before nursery – the child is not building their own private life outside their own family.
The possibility of seeking entry clearance
In a number of cases, applications have been made by overstayers. In most applications under the Immigration Rules, there is a requirement that an applicant inside the UK have valid leave when the application is made. Additionally, the Rules prohibit ‘switching’ from a visit visa to most other forms of leave. Applications may be refused on this basis even if the applicant meets all of the other requirements of the Rules.
The Home Office’s position is that a person in this situation should not ‘jump the queue’ by being granted leave inside the UK. Instead, they should return to their country of origin and make an entry clearance application – thus ‘joining’ the queue.
However, the courts have taken a slightly different view, and have repeatedly said that each case must be looked at on its own facts, and that there will be situations where an exception should be made and a person should not be compelled to leave the UK solely to make an application to return (see Chikwamba (FC) v Secretary of State for the Home Department [2008] UKHL 40 and subsequent cases).
Matters to be taken into account will include the likely length of separation of a family – particularly if there are children involved. They will not generally include the family’s financial circumstances, or the expense of travelling and of making a new application; however, financial issues may bear on the length of separation, so could be arguable on that basis.
In some cases, the fact that a person will be able to re-enter the UK means that there will be no public interest at all in his or her removal. In Parveen v Secretary of State for the Home Department [2018] EWCA Civ 932, the appellant had entered the country lawfully and genuinely on a spouse visa and had remained married to her husband and resident in the UK ever since but had not, thirteen years earlier, made an application for leave. Underhill LJ observed at paragraph 28:
‘It is hard to see how it could be right to insist on the empty but disruptive formality of leaving the country in order to correct a venial administrative error made thirteen years previously.’
More recently in Younas (section 117B (6) (b); Chikwamba; Zambrano) [2020] UKUT 129 (IAC), the Upper Tribunal addressed the matter again.
In this case the appellant, a national of Pakistan, had come to the UK on a visit visa, and had an infant child with her British partner. The child was therefore also British. The partner also had two teenage British children from a previous relationship. The appellant applied to vary her leave in order to remain in the United Kingdom with her partner and child.
The Home Office conceded that there were insurmountable obstacles to the couple living in Pakistan, but argued that it would not be disproportionate for the appellant to return there for a limited period to make an entry clearance application.
The appellant argued that she could not do so because the couple could not meet the income threshold (which the Tribunal rejected).
The Tribunal set out its proportionality consideration thus:
‘102. We apply the considerations in section 117B as follows:
a. Section 117B(1) of the Nationality, Immigration and Asylum Act 2002 provides that the maintenance of effective immigration controls is in the public interest. For the reasons we have set out above, this factor weighs heavily in favour of removal.
…
104. Weighing on the appellant’s side of the balance sheet is that:
a. The appellant’s daughter will be separated from her father (and the appellant from her partner) for up to 9 months. This is a substantial period of time, particularly for the daughter.
b. It is in the best interests of the appellant’s daughter to remain in the UK with both parents rather than temporarily reside in Pakistan with just the appellant.
c. The appellant will face some challenges setting herself up and organising her life in Pakistan, given that she has not lived there previously.
105. Weighing on the other side of the balance sheet is that even though the appellant’s removal will be followed by her re-entry, there is, for the reasons explained above, nonetheless a strong public interest in her being required to leave the UK in order to comply with the requirement to obtain valid entry clearance as a partner.
106. Balancing the factors weighing for and against the appellant, we reach the firm conclusion that her removal, in order to make an entry clearance application from Pakistan, is proportionate.’
In other words, in the particular circumstances of the case, the Tribunal found that the maintenance of immigration control outweighed other considerations.
The possibility of continuing one’s family life outside the UK
Where an Article 8 application based on family life, made within the UK, is refused, the Home Office may argue that the family can continue their family life overseas.
In these circumstances, the applicant will need to consider whether there are any factors which would render that option unreasonable.
– Is one of the family members ineligible to live in the applicant’s country of origin? This is unusual, but possible, depending on that country’s immigration laws.
– Does the spouse need medical treatment? This would not be an Article 3 case, as discussed above: the spouse would be settled in the UK and therefore entitled to receive treatment in the UK.
– Are there significant cultural differences? This is potentially more controversial, but in Amrollahi v Denmark (Application no. 56811/00) 11 October 2002 the European Court of Human Rights took into account the potential difficulty of a Danish woman adjusting to life in Iran.