(Long Form): The European Convention On Human Rights Flashcards
What is the significance of Article 8 (the Right to Private and Family Life) in immigration law?
Article 8 of the European Convention on Human Rights (ECHR) protects the right to private and family life. In immigration law, its significance lies in the balancing exercise that takes place between the public interest and the rights of individuals. This means that when making decisions about immigration, authorities must consider whether an individual’s right to private and family life outweighs the public interest in maintaining immigration control. This can involve evaluating factors such as the person’s family ties in the country, the impact on their children, and their integration into society.
What is the Razgar 5-step method of determining claims based on Article 8 outside the rules and under GEN.3.2?
The Razgar 5-step method is used to determine claims based on Article 8 of the ECHR outside the immigration rules. The steps are:
Is there respect for private or family life?: Determine whether the proposed action (such as deportation) will interfere with an individual’s private or family life.
Is the interference in accordance with the law?: Assess whether the interference is lawful, i.e., it must have a basis in national law.
Is the interference in pursuit of a legitimate aim?: Check if the interference is for one or more of the aims set out in Article 8(2), such as national security, public safety, or the economic well-being of the country.
Is the interference necessary in a democratic society?: Determine whether the interference is necessary in a democratic society, meaning it must correspond to a pressing social need and be proportionate to the legitimate aim pursued.
Is the interference proportionate?: Weigh the public interest against the individual’s rights to decide if the interference is justified.
How are a child’s best interests determined in immigration cases, particularly in the case of ZH (Tanzania)?
In immigration cases, a child’s best interests are determined by considering various factors that affect the child’s welfare and well-being. The case of ZH (Tanzania) is a landmark decision by the UK Supreme Court that emphasizes the importance of the child’s best interests in immigration decisions. Key points from this case include:
Primary Consideration: The best interests of the child must be a primary consideration in any immigration decision affecting them, as stipulated by Article 3 of the UN Convention on the Rights of the Child (UNCRC).
Holistic Assessment: The decision-making process should involve a holistic assessment of the child’s circumstances, including their emotional, educational, and social needs, as well as the impact of any potential disruption to their life.
Balancing Exercise: While the child’s best interests are not the sole consideration, they must be balanced against other factors, such as the need for immigration control and the rights of the public.
Case-Specific Factors: Factors such as the child’s age, the extent of their integration into the host country, their ties to their country of origin, and the presence of family members in the host country are taken into account.
In ZH (Tanzania), the Supreme Court highlighted that the best interests of the children involved were to remain with their mother in the UK, as they were well-integrated and had lived most of their lives there.
What role do the immigration rules play in determining what is in the public interest and when the public interest might be outweighed?
The immigration rules play a critical role in outlining the framework and criteria that guide immigration decisions, including how the public interest is assessed. Here’s a detailed explanation:
Framework for Decision-Making: The immigration rules provide a structured framework for evaluating immigration applications, ensuring consistency and transparency in the decision-making process. They set out specific criteria and conditions that applicants must meet.
Public Interest Considerations: The rules incorporate public interest considerations such as national security, economic well-being, prevention of crime and disorder, and the protection of public health. These factors are weighed against individual rights in immigration decisions.
Balancing Exercise: When considering Article 8 claims (right to private and family life), the rules require a balancing exercise between the public interest and the individual’s rights. The public interest might include factors like the need to maintain effective immigration control, ensure public safety, and uphold the integrity of the immigration system.
Guidance on Exceptions: The rules also provide guidance on when the public interest might be outweighed by other factors, such as strong family ties, the best interests of children, and long-term residence. For example, the rules may allow for exceptions where deporting an individual would have a disproportionate impact on their family life or where a child’s welfare would be severely affected.
Statutory Provisions: Statutory human rights considerations, such as those in Sections 117B and 117C of the Nationality, Immigration, and Asylum Act 2002, also influence how public interest is balanced against individual rights. These provisions highlight factors like the importance of speaking English and being financially independent, which can affect the overall assessment.
In summary, the immigration rules establish the criteria for evaluating applications and guide how public interest considerations are balanced with individual rights. They ensure that decisions are made systematically, taking into account both the needs of the state and the rights of individuals.
What are the statutory Human Rights considerations in Section 117B and 117C, and when must they be applied?
Sections 117B and 117C of the Nationality, Immigration and Asylum Act 2002 outline statutory human rights considerations that must be taken into account when courts are considering cases involving Article 8 of the European Convention on Human Rights (ECHR), specifically regarding the right to private and family life.
Give a breakdown of Sections 117B of the Nationality, Immigration and Asylum Act 2002
Section 117B: Public Interest Considerations Applicable in All Cases
English Language: It is in the public interest that persons seeking to enter or remain in the UK can speak English. This enhances their ability to integrate and contribute to society.
Financial Independence: It is in the public interest that such persons are financially independent, as this reduces their reliance on public funds and benefits.
Little Weight to Private Life Established: Little weight should be given to a private life or a relationship formed with a qualifying partner that is established when the person is in the UK unlawfully.
Little Weight to Private Life Established While Immigration Status is Precarious: Little weight should also be given to a private life established when the person’s immigration status is precarious, meaning they are not settled or do not have secure immigration status.
Give a breakdown of Sections 117C of the Nationality, Immigration and Asylum Act 2002
Section 117C: Additional Considerations in Cases Involving Foreign Criminals
Deportation of Foreign Criminals: The deportation of foreign criminals is in the public interest.
Public Interest: The more serious the offence committed by a foreign criminal, the greater the public interest in deportation.
Exception 1: A foreign criminal who has been lawfully resident in the UK for most of their life and is socially and culturally integrated in the UK, and if there would be very significant obstacles to their integration into the country to which they are to be deported.
Exception 2: A foreign criminal who has a genuine and subsisting relationship with a qualifying partner or a genuine and subsisting parental relationship with a qualifying child, and the effect of their deportation on the partner or child would be unduly harsh.
Very Serious Crimes: For foreign criminals who have been sentenced to at least four years’ imprisonment, the public interest in their deportation is not outweighed by these exceptions unless there are very compelling circumstances.
Why are Sections 117B and 117C important in relation to deciding cases under GEN.3.2 (Article 8 claims outside the immigration rules)?
These statutory considerations must be applied when courts are deciding on cases under GEN.3.2 (Article 8 claims outside the immigration rules) or when assessing the proportionality of interference with Article 8 rights. They help ensure that decisions balance individual rights with the public interest in maintaining effective immigration control and protecting the public.
How has case law influenced the immigration rules?
- Clarifying Proportionality and Fairness: Courts have clarified how proportionality and fairness should be assessed in Article 8 claims. For example, landmark cases like Razgar and ZH (Tanzania) have set out detailed principles for assessing the balance between individual rights and the public interest.
- Defining Key Concepts: Case law has helped define key concepts such as “genuine and subsisting relationships,” “unduly harsh effects,” and “very significant obstacles” to integration. These definitions are crucial for applying the immigration rules consistently.
- Highlighting Procedural Fairness: Judicial decisions have emphasized the importance of procedural fairness in immigration decisions, influencing the rules to ensure that applicants are given a fair opportunity to present their case and have their circumstances fully considered.
How do the rules and statutory human rights provisions influence the interpretation of case law going forward?
- Providing a Framework: The immigration rules and statutory human rights provisions provide a structured framework that guides how courts should approach and assess cases. They set out specific criteria and considerations that must be taken into account, which helps standardize decision-making.
- Statutory Considerations: Sections 117B and 117C of the Nationality, Immigration, and Asylum Act 2002 codify certain public interest considerations that courts must apply in Article 8 cases. These sections shape how proportionality is assessed in light of public interest factors like financial independence and language proficiency.
- Balancing Acts: The rules and statutory provisions require courts to conduct a balancing exercise between the public interest and individual rights. This structured approach ensures that decisions are not solely based on discretionary judgments but are grounded in established legal principles.
- Updating Interpretations: As new case law emerges, it often builds on and refines the principles established in previous rulings and the existing rules. This iterative process ensures that immigration law evolves in response to changing societal values and legal standards.
What were the agreements influenced by the end of the second world war?
The European Convention on Human Rights (ECHR) and the Refugee Convention.
What earlier instrument inspired the ECHR and when was it adopted?
The Universal Declaration of Human Rights (UDHR), adopted by the United Nations General Assembly on 10 December 1948.
What is the key difference between the UDHR and the ECHR in terms of enforcement?
The UDHR introduced no means of enforcing the rights it proposed, while the ECHR established the European Court of Human Rights (ECtHR) to deal with alleged breaches of human rights.
Who were some of the key figures involved in drafting the UDHR and the ECHR?
Charles Dukes from the UK was involved in drafting the UDHR. Winston Churchill and Sir David Maxwell-Fyfe were instrumental in drafting the ECHR.
What are the first three rights listed in the ECHR?
Article 2: Right to Life
Article 3: Prohibition of Torture
Article 4: Prohibition of Slavery and Forced Labour
