The European Convention on Human Rights (ECHR) was incorporated into UK Law through the Human rights Act 1998 which came into force in October 2000. We will look briefly into the relevant Articles of ECHR, their interpretation and application and how they are used in Immigration and Asylum matters.
Section 7 HRA 1998- states that, where a person claims that a public authority has acted in a way that would breach ECHR, he may bring proceedings in the appropriate court or tribunal. Below is a list of Articles;
Art 2- the right to life
Art 3- freedom from torture, and from inhuman or degrading treatment
Art 5- the right to liberty and security of person
Art 6- the right to a fair trial
Art 8- the right to a private and family life
Art 14-- freedom from discrimination in the enjoyment of the rights and freedoms conferred by ECHR
The principle ones which appear in common Immigration cases are Article 3 and Article 8;
Art 3- No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
Torture: being deliberate inhuman treatment causing very serious and cruel suffering. Example of a case involved being subjected to detention, blindfolding, beatings, causing physical pain and mental anguish, being paraded naked, being pummelled with high pressure water and particularly, violent, repeated rapes.
Inhuman or degrading treatment of punishment-
the treatment suffered was considered was classed as treatment which causes 'intense mental and physical suffering'. This is treatment which arouses in the victim a feeling of fear, anguish and inferiority capable of humiliating and debasing the victim and possibly breaking his or her physical or moral resistance.
Proof required by Home Office
The standard of proof has to be that there were substantial grounds for believing that such treatment would occur.
1. Everyone has the right to respect for his/her 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. Article 8 is specifically pertinent to decisions regarding entry to the UK as well as decisions to deport or remove. Factors the Home office looks at include;
3. the length of the persons stay in the country from which he is to be
4. the family situation such as the length of the marriage and any other factors demonstrating the effectiveness of the family life.
5. whether the spouse knew about the offence at the time when she entered into the family relationship.
6. Any children of the marriage and their ages
7. Any difficulties that the spouse may encounter in the country to which the person is to be expelled.
We hope this article has been useful and if you believe you have a case which satisfies perhaps some of this criteria we would like to hear from you. Call us now on 0208 575 0061