European Convention on Human Rights - Article 8

[Terpe]

Article 8 is the right to a private and family life and is worth quoting in full:

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 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.

May is quoted as stating that Article 8 is not absolute and can be overridden to prevent crime, protect national security and safeguard the rights of others:


“In the interests of the economy, or controlling migration or public order, those sort of issues, the state has a right to qualify the right to a family life.”

As anyone can see, she is largely right. Article 8 is not absolute, unlike some other human rights such as Article 3, the right to freedom from torture. The right to a private and family life must be balanced against other factors. Where she is wrong is in suggesting that the State has a right to qualify Article 8. This is fundamentally and misleading because Article 8 is already a qualified right. It is part of its nature that it is qualified. The State does not need to do anything to qualify it, and to suggest otherwise is to misrepresent the nature of human rights for political purposes and pretend that something can be done when in truth it cannot.

Striking a difficult balance between the right to a private and family life and the very important competing considerations is exactly what immigration judges do, day in, day out. In the vast majority of cases (between 2 and 8% according to JCWI) the judge comes down against the foreign criminal. Only in pretty small minority of cases does whatever private or family life has been established in the UK take precedence over other considerations.

Assuming that all this is not mere political gumph to please the anti-human rights lobby, what May is really suggesting is simply removing Article 8 or, to put it another way, making the competing factors absolute and binding. When the courts reach a decision on Article 8 (and this supposedly applies to the UK Border Agency as well) they have to undertake a five step legal assessment:

(i) Will there be an interference by a public authority with the exercise of the applicant’s right to respect for his private or family life?

(ii) If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8?

(iii) If so, is such interference in accordance with the law?

(iv) 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?

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

This assessment is mandated by the House of Lords decision in Razgar [2004] 2 AC 368 and by innumerable Strasbourg judgments. There is no legal way round the assessment. May wants judges always to answer ‘yes’ to question (v) in every case, but in law they cannot. Our judges remain independent and must carry out an independent assessment. The only ways to achieve what May wants are:

1. Modify the Human Rights Act

2. Withdraw from the Council of Europe

3. Remove access to the courts, or

4. Do away with an independent judiciary.

From the language she uses, it is disturbing to think a major politician, the Home Secretary no less, is actually advocating the last of these options. Unfortunately, there is a precedent for legislating to tell judges what to think: the appalling section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 was a similar attempt in another context. In any other area of law than immigration this would have caused a huge outcry for not just undermining but explicitly abrogating the independence of the judiciary, but there are few in or outside Parliament who are willing to stand up for asylum seekers or immigrants. Still less for foreign criminals or for their spouses or children.

There may be short term political benefits but in the longer term this sort of politics is very dangerous

Source:-
http://www.freemovement.org.uk/2012/...be-overridden/

[andy222]

Well done terpe. Fascinating reading but still complicated. I still dont know how we would stand with a appeal. (The right to family life).

[joebloggs]

Well done terpe. Fascinating reading but still complicated. I still dont know how we would stand with a appeal. (The right to family life).

article 8 - the right to a family life they have said in the past there is nothing stopping you going living in the Phils. but if you have kids then 'best interest of a child' would play an important part.

[lastlid]

What I understood her to be saying on the Andrew Marr show was that she was seeking to make those elements of Article 8 binding that are concerned with the exceptions relating to public safety and disorder etc. But I guess that can so easily slide to envelope the economic bit too.....

[andy222]

Thanks Joe. I have a stepkid. I can afford to bring the wife here but just short of bringing the kid.

[andy222]

What I understood her to be saying on the Andrew Marr show was that she was seeking to make those elements of Article 8 binding that are concerned with the exceptions relating to public safety and disorder etc. But I guess that can so easily slide to envelope the economic bit too.....

Its still cloudy laslid.

[joebloggs]

Thanks Joe. I have a stepkid. I can afford to bring the wife here but just short of bringing the kid.

how old is your step kid ?
best option might be to get your wife here, she finds a job asap then get your stepkid here, as her salary can be used toward the minimum income you need.

[andy222]

Stepkid is 5 Joe. Thanks.

[tone]

Terpe - very useful!
What makes me wonder is if the TOEIC test certificate ran out before applying for her ILR and we submitted everything in accordance to the requirements are the UKBA and HO going to kick my wife out of the country?
She is married to a british citizen, and bore a british child here - I can't see them taking that on!
I am sure many of us are in the same boat here - but for the sake of an english test they want to split up families - then there is the issue made to what Joe mentioned - interests of the child.

Although I am a law abiding citizen - ok I speed sometimes I always try to err on the right side. But this point could make me think em!
If Qatada can get legal aid to fight the Gov then I surely must be able to!

[joebloggs]

Stepkid is 5 Joe. Thanks.

it might be your best option, not sure if your misses will like it, has she a family member who can look after the child ?

my step son is in the same situation, wife and 2 kids in the phils, this has forced his hand now, the only way for him is to get his wife here, she finds a job and then apply for there kids, bad thing is they are nearly 2 and nearly 4, what kinda of gov forces families part like this

[joebloggs]

She is married to a british citizen, and bore a british child here - I can't see them taking that on!
I am sure many of us are in the same boat here - but for the sake of an english test they want to split up families - then there is the issue made to what Joe mentioned - interests of the child.

i think if she cant pass the english test in time then she can apply for 5 more years of FLR, and apply for ILR under the 10yrs rule

yes the child should stop her being deported, she would have got discretionary leave, not sure if that not ended thou, might be 5yrs FLR instead

why the extra 5yrs flr - no recourse to public funds , so ti could be a long 10yrs b4 you were allowed recourse to public funds, even you might have been paying taxes for 10yrs