Article 8 of the European Convention on Human Rights and Immigration Law

Abstract

This research focused on Article 8 of the European Convention on Human Rights and its use in the context of immigration in the UK. Drawn from the decisions of the English Courts and the Researcher’s own personal experience as an immigration, asylum and human rights lawyer, the research provides an in-depth analysis of the law in action. Instead of going for an academic discussion, the researcher’s main thrust was a better understanding of how the jurisprudence of English Courts has developed in this field, often comparing it with the decision of European Convention on Human Rights. The researcher relied on case laws and on unreported cases where he was personally involved as the legal representative and as such has first-hand knowledge, as the primary source of his research.

The research found that contrary to the view of many commentators that the Human Rights Act has failed to protect personal freedoms, at least in the field of immigration, especially where reliance is placed on Article 8, English Courts have shown remarkable willingness to protect individual rights over state interests. The Judges have taken their role under the Act seriously, and if they find that a particular case is unlawful using established legal principles or other factors, they are not taking deference to Administrative action. Courts are treating factors like delay, mistake, problems of getting entry clearance etc as favourable to the applicants. Lower Level of the Judiciary seems to be keener in finding a violation of Article 8 than Higher Court Judges. This development appears to be unwelcoming to the executive and they try to restrict the judges’ powers by bringing in sweeping changes. However, the courts undaunted by these obstacles, try to find a way out to uphold the individual’s private and family life, even to the utter disappointment of the executive.