Families and Children under Article 8 Summarised Notes for the Immigration Law module, LLB, at City, University of London - can of course be used for other universities as well! Should be used with the full bundle of notes! Achieved a high First Class with these very well structured notes!
So e.g. if illegally entered, without lawful permission e.g. came in lorry or had student visa and did
not leave can consider if illegal immigrant allowed to stay using Art.8 or not meet immigration
rules e.g. financial but have insurmountable obstacles of family living abroad
Judicial power on human right to family life being undermined by refusal grant immigration status
No general right to have choice of country to establish your family life under the ECHR case law
Court looks at degree of attachment +extent which adults chose to migrate and separate family
APPENDIX FM – seeks to make family migration more difficult (quite high income levels) and to
define when a person may be allowed to stay who does not meet normal rules of APPENDIX FM
Judges power to rule on proportionality with family life where not meet requirements of rules
Cases where removal of an adult would affect children have raised particular difficulty because
the UN Convention on the Rights of the Child come into play
A child who is British or who has lived in the UK for seven years is given a special status under the
Rules and the 2014 Act
**PROBLEM Q – SEE IMMIGRATION RULES (E.G. FINANCIAL + ENGLISH REQUIREMENT OR GET
MONEY FROM FAMILY I.E. APPENDIX FM-SE), IF NO MONEY FALL BACK ON EX1 (ARE THERE
SERIOUS OBSTACLES + QUALIFYING CHILDREN), THEN LAST LAST CHANCE IS ART.8 CLAIM WHICH IS
NOT IMPOSSIBLE TO WIN BUT VERY HARD
SO FOCUS IS ON THE RULES (APPENDIX FM) IF NOT CONSIDER ART.8**
ECHR APPROACH
AHMUT V NETHERLANDS [1996] – Refusal by Netherlands authorities grant a residence permit to a
Moroccan minor would have lived with father – who has dual Moroccan and Netherlands nationality
Son still has strong links with linguistic + cultural environment of his country – still family there
Applicant’s living apart due to the father’s conscious decision to settle in Netherlands rather than
remain in Morocco - father retained his original Moroccan nationality – not prevented in
maintaining the degree of family life which he himself opted for when moving to Netherlands in
the first place – no obstacle in returning to Morocco
ARTICLE 8 does not guarantee a right to chose most suitable place to develop family life – by
sending son to boarding school – father had him to be cared for in Morocco – no need to going
into question whether sons relatives living in Morocco are willing and able to take care of him
LEGAL CONTEXT
There is no enshrined right for a British resident to be joined in the UK by their family members
s.1 (4) IMMIGRATION ACT 1971 –obliges the Secretary of State to make rules to govern certain
types of entry – does not require these to cover the admission of family members – an omission
that cannot be challenged under the HUMAN RIGHTS ACT 1998 – this is an omission of the
legislature which is immune from action
Entry is governed by Immigration Rules and the applicant is not the UK resident but the foreign
national family member who wishes to enter and who must meet the requirements of the rules
ODELOLA & MAHAD has confirmed that they represent statements of policy rather than legal
rights but they are nonetheless binding on the government
There is no duty to consult nor abide by the outcome of a consultation
The lack of statutory grounding for the entry of family migrants make it easier to restrict rights in
line with popular or government concerns
Whether a family member gets leave to enter depends on the judgment of the entry clearance
officer as to whether they fulfil the requirements of the rules
Immigration law is affected by EU Law and Human Rights norms –mainly Art.8 ECHR
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, ART.8 – has been influential in the development of the recent law
Some restrictive government policies have been successfully challenged in the courts often using
Human Rights – particularly ARTICLE 8 ECHR
The government clearly tried to take back some control of this area in the changes made to the
Immigration Rules following the consultation – these changes said to codify the approach case
owners and judges should take when considering family life under ARTICLE 8
RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE (ART.8)
Right to respect private and human life recognised in ECHR – and fundamental human right
Included in DECLARATION OF HUMAN RIGHTS 1948 and INTERNATIONAL COVENANT ON CIVIL
AND POLITICAL RIGHTS 1966 – both forbid arbitrary + unlawful interference with family life
INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS 1966 – ARTICLE 12 –
“The widest possible protection and assistance should be accorded to the family which is the
natural and fundamental group unit of society”
Domestic law – remedies breach through HRA, ARTICLE 8 ECHR –right respect private + family life
s. 82(1)(b) NATIONALITY, IMMIGRATION AND ASYLUM ACT 2002 provides that a person may
appeal to Tribunal if Secretary of State decided to refuse a human rights claim made to claimant
Include family visas, over stayers and illegal entrants where human rights grounds explicitly raised
ARTICLE 8 (2) – “shall be no interference by a public authority with exercise of this right except in
accordance with law and is necessary in a democratic society in interests national security”
Most disputed cases centre on ARTICLE 8(2) question of proportionality
Huang v SSHD [2007]– constitutionally important case
Woman came to join husband + daughter in UK, not met rules, so relied on Art.8, judge said
where not meet rules and appeal on Art.8 grounds, judges can look at individual cases
Government came to the court – immigration rules into account of family life
Rules are proportionate – provision for spouses, children and people who have been living here
for a long time – if you cant meet the rules then not helpful
Exceptionality test – immigration authority
Must be removed that if an applicant qualifies for the grant of leave to enter or remain under the
rules and it is refused to leave the immigration appeal authority must allow such application
appeal by virtue of PARAGRAPH 21 (1) of PART 3 SCHEDULE 4 1999 ACT
Constitutional case about relationship between executives and the parliament
Parliament created appeal on ARTICLE 8 grounds, Immigration rules do not remove that right
Made it clear Court or Tribunal to reach its own decision on proportionality
Keylor
challenged rule of age, said rule unfair, from Chile, wife only 17, spouse had to be 18 (this was rule),
she turned 18, then HO changed rules again and made it to 21, (HO done to address issue of forced
marriages), argued discrimination based on age, government justified to stop force marriages, Court
stated where is the proof that it stops forced marriages, government not have proof, Lord Wilson
stated it was a colossal interference to wait another 3 years as they meet all the other requirements
of the rules this case was one where the couple could have lived back home in Chile, no barriers to
not go back– here rule itself was struck down – rule itself was too strict and interfered with Art.8
Alvi v SSHD [2012]
This is a case of enormous constitutional significance held substantive changes in immigration rules
must be laid before parliament. The government could not rely on other sources such as prerogative
or guidelines. The decision rendered much of the points-based system and tools regulating family
migration illegal. The government incorporated everything into the Rules
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