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© Pathfynder Limited 2018. Pathfynder Solicitors is a trading name of Pathfynder Limited, a company registered in England and Wales with company registration number 10170947. The registered address is King House, 5-11 Westbourne Grove, London, W2 4UA. Authorised and regulated by the Solicitors Regulation Authority, SRA No. 629672.


Human RightsAs a signatory to the European Convention on Human Rights, the UK is obligated to uphold the rights contained within it. Although there are many different facets to this, from an immigration perspective what this often comes down to is whether an individual can come to or remain in the UK by asserting such rights.

Despite the importance of human rights and their role in immigration cases, they have not always been easy to understand.

What are Human Rights?

Human rights are a set of inalienable basic rights and freedoms which all humans have when they are born. They can never be ignored, nullified or taken away, by any country or State regardless of how large or powerful they are. They range from what are considered to be the most important rights, such as the right to life and freedom from torture, to rights which protect the right to marriage and home life.

States have both positive and negative obligations to protect human rights. Positive obligations mean that the State must take proactive measures to ensure that a human right is protected; negative obligations ensure that the State refrains from conduct which would result in the infringement of a persons’ human rights. In practice, human rights have elements of both.

International framework

The Universal Declaration on Human Rights (‘UDHR’), created in 1948 in light of the countless atrocities which were committed in World War One and World War Two, is generally considered to be the foundation of international human rights law. This document highlighted the universality of human rights to all humans regardless of gender, sex, colour or nationality. It is important to note that this is not a legally binding document on States; but is in fact a yardstick by which respect for fundamental human rights is assessed. Most modern human rights instruments have derived some inspiration from the way the UDHR sets out basic rights and freedoms.

The UK is also a signatory of other international human rights instruments such as the International Covenant on Civil and Political Rights (‘ICCPR’) and the International Covenant of Economic, Social and Cultural Rights (‘ICESCR’) which protect civil rights such as the right to life and economic rights such as the right to adequate housing. The UK is a state which is actively involved in trying to uphold human rights across the globe.

European Convention on Human Rights

Europe has its own international legal treaty which is the ECHR. The rights in the ECHR are more than just visionary words and statements; they are enforceable, solid rights which citizens can rely upon, so as to defend themselves against unjustified State interference.

In recent years, the media have covered some ECHR cases being contested in court; such as R (on the application of MM (Lebanon) and Others) (Appellants) v Secretary of State for the Home Department (Respondent) [2017] UKSC 10 which concerned foreign spousal income limits when coming to the UK to be with their partner. ECHR rights are an important aspect of immigration law, but not a lot is actually known about how the ECHR and the relevant bodies in charge of enforcing these rights, actually work.

The Council of Europe

The sole aim of the Council of Europe is to protect the rights which are enshrined within the ECHR, and to ensure they are adhered to amongst the 47 signatory states. The Council of Europe is split up into the:

- European Court of Human Rights: the Court provides legal judgements on cases where a Member State has allegedly violated a person’s rights under the ECHR. If there has been a violation, the Court will issue a judgement which then becomes legally binding on all other Member States. These judgements provide the definitive legal meanings to ECHR rights and what boundaries each state must respect.

- Parliamentary Assembly: although PACE has no power to pass binding laws onto Member States, it acts on behalf of millions of Europeans through holding Parliamentarians from different Member States to account for their actions. The Parliamentary Assembly can negotiate the terms on which new States can join, create reports on human rights abuses which occur on European soil and inspire new human rights laws.

- Committee of Ministers: this body is made up of the ministers of foreign affairs from each Member State or permanent diplomatic representatives. The ministers make decisions on what policies the Council of Europe pursues, the budget of the Council of Europe and the programme of activities.

All these parts of the Council of Europe work together to ensure that the ECHR is upheld across Europe.

What are the various human rights?

The UK has implemented ECHR rights via the Human Rights Act 1998 which sets out the various rights in Schedule 1 as follows:

Article 2 & 3: Right to life and the prohibition of torture

Article 2 states:

‘…Everyone’s  right  to  life  shall  be  protected  by  law.  No  one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.’

Article 3, which cannot be derogated from under any circumstances, regardless of the person’s past criminal convictions or behaviour, states:

‘‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’

In immigration law, these articles can apply in cases of deportations and removals where a person who is threatened with removal from the UK faces the possibility of death/unlawful killing or torture or inhuman and degrading treatment as a result of their removal. The Home Office policy guidance in this area also states that immigration caseworkers should not return a person to a country if there is a real risk, based upon the evidence, of either of these eventualities occurring.

If, as a result of Article 2 and/or 3, the Home Office cannot remove a person from the UK, the Home Office will consider granting them some form of status to allow them to remain in the UK. The Home Office may consider this course of action where removing a person could result in any of the following:

- The death penalty: under Protocol 6 of the ECHR, no country can send a person back to a country where they face a real risk of the death penalty.

- Unlawful killing (extra-judicial): this is a similar test to the death penalty, but this section recognises that governments may sanction killing outside of the law.

- Indiscriminate violence: the test for this category derives from QD (Iraq) v SSHD [2009] EWCA Civ 620) which states that there must be such a high level of indiscriminate violence present in a country that a person, solely by being there, would face a real risk to their life. It is important to note that this test only applies to civilians.

- Torture or inhumane or degrading treatment: torture is considered to be a worse form of inhumane or degrading treatment; the type of label a treatment would get would depend on the person’s circumstances. Circumstances which would fall under this category could include prison conditions, general violence within a country and severe humanitarian conditions.

Article 6: Right to a fair trial

Article 6 states:

‘…everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…’

Interestingly, Article 6 does not always apply to immigration decisions (see MNM (Surendran guidelines for Adjudicators) Kenya [2000] UKIAT 00005). This is mainly because Article 6 can only be relied upon where civil rights are concerned or against any criminal charge. The question therefore arises as to whether immigration decisions engage such rights.

Generally speaking, administrative decisions made by the Home Office are within the discretion of the immigration authorities and do not engage a person’s civil rights nor are they criminal allegations. However, where a person is detained as a result of such a decision it is arguable that a civil right is engaged.

Article 8: Right to respect private and family life

Article 8 states:

‘(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 in accordance with the law and is necessary in a democratic society…’

Article 8 is a very broad right, and one that has a lot of case law surrounding it. Applicants generally assert this right either to enter the UK, to remain in the UK or to challenge a decision to be removed or deported from the UK.

The main test for assessing an Article 8 claim is set out in R v Secretary of State for the Home Department ex parte Razgar [2004] UKHL 27. This is commonly referred to as the ‘Razgar test’ and comprises the following five stages:

- Does the decision by a public authority interfere with the applicant’s right to respect for his private or family life?

- If so, will such interference have consequences of such gravity as potentially to engage the operation of Article 8?

- If so, is such interference in accordance with the law?

- If so, is such interference 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?

- If so, is such interference proportionate to the legitimate public end sought to be achieved?

Generally, questions 1 to 4 can be answered in the affirmative and the outcome of a case will depend on whether the interference is proportionate. Lord Bingham in Razgar stated that decisions taken under the lawful operation of immigration control will be proportionate, unless there is something exceptional in a case which suggests otherwise. What this means is that if the Home Office provides a legitimate aim to their decision and justifies it with reasons, it would be hard for an applicant to contest this decision under Article 8.

The immigration rules and Article 8 have recently been litigated in the Supreme Court. In R (on the application of MM (Lebanon) and Others) (Appellants) v Secretary of State for the Home Department (Respondent) [2017] UKSC 10 the immigration rules in contention stated that British citizens who wanted their non-EEA national spouses or civil partners to come and live with them in the UK, needed to satisfy the minimum income requirement of earning £18,600 per annum. The appellants in this case argued that these rules were contrary to their Article 8 right to respect for family or private life. The Supreme Court found that:

- The minimum income requirement may be difficult for many families, but it is not unlawful. It has the legitimate aim of ensuring that spouses of British citizens do not have to recourse to welfare benefits whilst they are in the UK.

- The restrictions in the Rules on taking account of the foreign spouse’s prospective earnings or the guarantees of third party support in assessing whether the minimum income requirement has been met are harsh, but not irrational. However, a restrictive approach taken outside of the rules, ie in a tribunal, is inconsistent with Article 8 ECHR. Decision makers at an earlier stage should not be forced to take a narrow approach when looking at a family’s finances.

Asserting your rights

In immigration cases, human rights can be asserted in a variety of different ways but it is important to understand the strength of such assertions. Poor or incomplete representations usually do not assist those who are looking to enter or remain in the UK. As such, it is important that individuals obtain appropriate legal advice at the earliest opportunity.

Please note that this article is for information only and should not be taken as legal and/or financial advice. Immigration law changes regularly and it may be the case that this page has not been updated to take into account the latest changes. If you would like advice on your personal circumstances, please feel free to contact us.

Human Rights - 26 Apr 2017