Shabana Mahmood tells Council of Europe that Article 8 is too often used in ways that frustrate deportation
The Lord Chancellor, Shabana Mahmood, has called for reforms to how Article 8 of the European Convention on Human Rights (ECHR) is applied in immigration cases, stating that the right to family life has, in some instances, been used in ways that undermine public confidence in the rule of law.
Image credit: Wikipedia Delivering a speech to the Council of Europe's Committee of Ministers in Strasbourg today, Mahmood said the Convention must evolve to meet modern challenges, particularly in relation to immigration and criminal justice. She emphasised that the UK remains committed to the Convention, but warned that the application of rights must not conflict with the principle of fairness or disrupt legitimate government functions.
The Lord Chancellor stated: "There is a growing perception – sometimes mistaken, sometimes grounded in reality – that human rights are no longer a shield for the vulnerable, but a tool for criminals to avoid responsibility. That the law too often protects those who break the rules, rather than those who follow them."
Article 8 of the ECHR, which guarantees the right to respect for private and family life, has been invoked in numerous UK immigration appeals where individuals facing deportation argue that removal would interfere with their established family ties in the UK. Mahmood criticised the use of Article 8 in some cases involving foreign offenders, stating: "If a foreign national commits a serious crime, they should expect to be removed from the country. But we see cases where individuals invoke the right to family life – even after neglecting or harming those very family ties."
In its press release on the speech, the Ministry of Justice said many foreign offenders have exploited Article 8 in order to avoid deportation.
The Lord Chancellor clarified in her speech that the concerns she was raising do not reflect opposition to the European Court of Human Rights itself, which she said continues to have her "full support." However, she stated that where legal outcomes appear out of step with public expectations, governments have a responsibility to act.
She said: "We cannot leave these questions to the courts alone. If judges are being asked to solve political problems that parliaments avoid, we weaken both institutions. That is why reform must be a shared political endeavour amongst us as member States – to preserve our Convention by renewing its moral and democratic foundation."
The Lord Chancellor confirmed that the UK is actively pursuing reform in the domestic application of Convention rights. She stated that this effort is not intended to weaken rights, but to update and strengthen them in accordance with the Convention's original purpose.
She told the Committee of Ministers: "In the UK, we are restoring the balance we pledged at the birth of our Convention: liberty with responsibility, individual rights with the public interest. There must be consequences for breaking the rules. Which is why we are clarifying how Convention rights – particularly Article 8 – operate in relation to our immigration rules. The right to family life is fundamental. But it has too often been used in ways that frustrate deportation, even where there are serious concerns about credibility, fairness, and risk to the public. We're bringing clarity back to the distinction between what the law protects and what policy permits."
In its White Paper published last month, the Government set out its intention to tighten rules around 'exceptional circumstances' and Article 8 in immigration cases, seeking to reduce the number of cases considered 'exceptional' and to limit the number of successful claims.
Legal experts, including Doughty Street barrister Jamie Burton KC, have challenged the narrative that Article 8 is routinely exploited to avoid deportation. In a May 2025 opinion piece in the Guardian, Burton noted that deportation is already mandatory for any foreign national sentenced to 12 months or more in prison, and he said concerns around the 'problem' of Article 8 have been significantly exaggerated and misrepresented.
Burton wrote: "Only 'exceptionally' can automatic deportations be avoided if they would breach the ECHR, which in practice typically means the right to family life contained in Article 8. The number of people able to invoke this protection is relatively small. Most appeals fail and, of those that succeed, only about one in three are successful on human rights grounds. In the 13 years between 2008 and 2021, the last period for which records are available, that was a total of 2,400 such cases out of 21,500 appeals."
Courts already apply strict statutory criteria, Burton noted, that require proof of "very significant obstacles" or "very compelling circumstances" for deportation to be blocked. Burton further pointed out that, despite political claims, there is no evidence of systemic misuse, and that even countries like Denmark have not succeeded in removing judicial discretion without breaching the Convention. He concluded that unless the Government intends to remove courts' balancing role entirely - which the Convention prohibits - any impact on numbers will be limited.