Article 8: Right to respect for private and family life
4 NOVEMBER 2011
Author: Sabina Frediani, Liberty Campaigns Co-Ordinator
Of all the fundamental freedoms protected by the Human Rights Act, none attracts controversy quite like Article 8 – the right to respect for your private and family life. Barely a day passes without it hitting the headlines for apparently all the wrong reasons. Flicking through certain newspapers you would be forgiven for concluding that it exists only to shield foreign murderers and rapists from deportation.
In practice that just isn't the case. So what does Article 8 do? Quite simply, it guarantees respect for the privacy and dignity so important to human beings. The State must not interfere with that right without proper justification and must take positive steps to protect it. But it's not the unfettered right that parts of the media suggest. Article 8 doesn't put privacy and family life ahead of everything else – it can be limited for public safety, order and health, and to protect the rights and freedoms of others providing the limitation is proportionate and clearly set out in law.
Immigration control is a legitimate purpose. So in Article 8 cases the State's interest in maintaining such control – or removing people convicted of serious offences – must be balanced against the right of the proposed deportee and his loved ones to be together. Surely when you're considering splitting up a family it's right that this balancing act occurs? Why is it controversial that deportation decisions made by politicians under external pressures are reviewed by the courts?
Yet controversial it remains and the criticisms keep on coming. The Home Office's chief grumble is that people it wants to remove are using Article 8 to block deportation. But it's historical nonsense to claim criminals couldn't assert family life to avoid removal before the Act. Article 8 principles were incorporated into Home Office deportation guidance by the last Conservative Government in the early 1990s. Furthermore, in 2010 only 12 per cent of appeals to the Immigration and Asylum Tribunal on Article 8 grounds were actually successful. It's all too easy for politicians to blame human rights for failings at the Borders Agency. Quicker administration would allow more people to be deported after conviction and before starting families but, once they have over many years, sometimes it's more desirable that a criminal stays, accepts his family responsibilities and supports his children.
The case of Iraqi asylum seeker Aso Mohammed Ibrahim is regularly rolled out as supposed proof of Article 8's absurdity. He is the driver who ran over schoolgirl Amy Houston and callously fled the scene. Amy later died. We're continually told that he can stay in the UK "thanks to the Human Rights Act". But when you look closer at this tragic story it's simply more complicated than that.
Ibrahim was prosecuted for failing to stop following an accident, driving whilst disqualified and driving without insurance. Not murder, manslaughter or dangerous driving. He was jailed for just four months. Understandably Amy's family were outraged at the sentence. Had he been convicted of a more serious offence and received a longer sentence, the Home Office may well have tried to remove him upon release. But seven years passed, during which Ibrahim married a UK citizen, fathered two children and acquired two stepchildren. When the Home Office finally took action it was the impact removal would have on his innocent family that kept him here.
But what about Amy and her family's rights? That's a perfectly natural response in a case so heartbreaking. But deportation was not the punishment for his crime. Ibrahim's penalty was his jail sentence – however lenient – which he served. Our legal system may have failed Amy's family, but those shortcomings aren't the fault of the HRA.
Then there was "catgate". How can we forget the Home Secretary telling the Conservative Party Conference of the illegal immigrant who couldn't be deported under Article 8 … because he had a cat.
Except that wasn't true either. This case actually involved the Home Office failing to apply one of its own policies to a Bolivian man – neither criminal nor illegal entrant – who had been with his British partner for four years. Two judges ruled separately that he should have benefited from the policy and been allowed to stay. The Home Office even conceded as much. The cat was one tiny detail amongst many offered by the couple to prove their genuine relationship. It's one thing for media commentators to misrepresent the Act and court judgments – it's quite another for a Cabinet Minister. The Home Office well knows the HRA leaves the last word on immigration and other legislation to Parliament.
The Anti-Human Rights brigade's complaints are also confused. One minute it's British judges and the HRA to blame; the next it's those unelected foreign judges and their interfering European Convention. So are the angry ones outraged patriots or do they just want rid of rights and freedoms altogether? Perhaps it's the latter – the Act is one of the few pieces of legislation allowing individuals to hold the State to account after all. If it's the former they should remember that scrapping the HRA, or radically diluting it, would again make Strasbourg our first instance court for human rights – surely rather a Eurosceptic own goal?
Those castigating Article 8 might also stop to consider all those it has helped. The people the media rarely mention, whose experiences are presumably less newsworthy. What about their rights? What about mum Jenny Paton, who used Article 8 when her local council subjected her and her children to James Bond style surveillance to see whether they lived in a certain school catchment area? What about the domestic violence survivor who used Article 8 to keep her family together when social services refused her housing and threatened to put her children into care? What about the severely disabled woman – left for 20 months in a property so unsuitable she could not reach the bathroom and kept soiling herself – who used Article 8 to make her council provide suitable accommodation and give her back some basic dignity?
There are countless other examples of Article 8 protecting innocent victims from State neglect and abuse and giving them redress. They remind us that we must continue to defend the HRA from attack and ensure the survival of its core values of dignity, equal treatment and fairness for everyone.
Please join Liberty today and help protect our fundamental rights and freedoms. The support of our members makes all our work possible.