ARTICLES 3 AND 8 ECHR   Page 2 Copyright Deirdre Fottrell  March 2005 - All rights reserved. No part of this document may be copied or used without the written permission of the author.

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Article 8 in the Context of Immigration and Asylum Claims

 What is ‘family life’ for the purposes of Article 8

ü      Case law of the Strasbourg court indicates that the approach has to be flexible and is fact dependant

ü      See  Lebbink v Netherlands [2004] 3 FCR 59 at para 35-36: 

'The court recalls that the notion of "family life" under art 8 of the Convention is not confined to marriage-based relationships and may encompass other de facto "family" ties where the parties are living together out of wedlock. A child born out of such a relationship is ipso iure part of that "family" unit from the moment and by the very fact of its birth. Thus there exists between the child and the parents a relationship amounting to family life.'

'The existence or non-existence of "family life" for the purposes of art 8 is essentially a question of fact depending upon the real existence in practice of close personal ties.' 

ü      Marckx v Belgium (1974) 2 EHRR 330 – ‘convention is a ‘living instrument’ –protection extends to non marital families

ü      X & Y v Netherlands – Article 8 includes positive obligations – ie failure to act to facilitate respect for family life may violate the Convention.

ü      Kroon v Netherlands (1995) 19 EHRR 263 – family life includes‘ de facto family ties’

ü      Keegan v Ireland (1994)– ‘family life exists between a biological parent and their child from the moment of birth’

ü      Berrehab and Koster v Netherlands (1989) 11 EHRR 322 – family life continues to exist where there is no cohabitation

'When deciding whether a relationship can be said to amount to "family life", a number of factors may be relevant, including whether the couple live together, the length of their relationship and whether they have demonstrated their commitment to each other by having children together or by any other means.

 

What does the concept of ‘private life’ mean

ü      No working definition of private life – elaborate concept which includes a range of issues such as control of personal information, sexual identity, medical treatment, physical and moral integrity

ü      Application to immigration and asylum issues because of the concept of physical and moral integrity.

ü      Bensaid v UK (2001) 33 EHRR 10 -  an Applicant may rely on Article 8 to resist an explulsion decision – where the main emphasis is not on family ties but is on the consequences for the physical and mental integrity – ie private life

ü      R (Razgar) v SSHD [2003] EWCA Civ 840 – approved the Bensaid approach – Article 8 may in principle be invoked on the issue of private life – however note Bingham LJ – the ‘threshold of successful reliance is high, if the facts are strong enough Article 8 may in pinciple be invoked’ .  An immigration decision which may lead an applicant to take his own life could invite the protection of Article 8 and amount to a disproportionate interference.

ü      See also R (Ullah) v Special Adjudicator [2004] UKHL 26 INLR 381 – endorses the approach in Razgar – however note it is necessary for an Applicant to show a very strong case if he is to successfully invoke Article 8 – the right must be seriously interfered with

 

 

 

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