It is envisaged that the Council of European Convention on Establishment and the European Convention on Human Rights will be the two main sources of protection for EA nationals and their family members who do not benefit from any Brexit settlement. Therefore, to avoid ongoing litigation it is important that any Brexit settlement makes adequate provisions for EA nationals and their family members. There should be protection for the right to reside to those EA nationals and their family members who have lived in the UK for five years. There should be rights to reside to those who have exercised treaty rights, but failed to obtain comprehensive sickness insurance or those who did not exercise treaty rights, such as students or those who have not exercised treaty rights but are European nationals, for example married to British citizens.
The Council of European Convention on Establishment protects those who have been lawfully resident in a member state for 10 years or more. The provision is of course that they have been lawfully resident in the UK and this is the origin of the long residence rule in our Immigration Rules.
The Right to respect for private and family life
Of particular relevance to our practice as lawyers is Article 8, the right to respect for private and family life. Article 8 the Court held in the case of Razjar points to five questions that must be answered in turn, in order to determine whether there is a breach of the obligation under Article 8.
The Court would ask firstly has private or family life been established? Secondly, has there been an interference with the right to respect for such private or family life? Thirdly, if such an interference is in accordance with the law and fourthly is any such interference necessary in democratic society as being in the interests of one of the legitimate aims set out in Article 8. Immigration Control has been long accepted as such an aim. The final question is, are the means chosen necessary in a democratic society. In other words is it proportionate?
Location, Location, Location
The right to respect for family life will not be protected by those who could enjoy a family life elsewhere. In other words you cannot select where to have your family life. There is no interference with the right to family life if the family can relocate to another country. There may be, however, an interference with the private life of the members of the family. The right to private life is the right to establish oneself, to develop relationships with other human beings and also the physical and psychological integrity of the person.
The Courts have dealt with the issue of proportionality and Article 8 in many cases. It has been accepted that the state has a right under international law to control the entry of non-nationals into its territory. It has also been established that Article 8 does not impose on the State a general obligation to respect the choice of the residents. Removal or exclusion of one family member from the state, where other members are lawfully resident, will not necessarily infringe Article 8, provided there is no insurmountable obstacles to the family living together in the country of origin of the family member excluded, even if it involves a degree of hardship for some members of the family.
The case law showed that Article 8 is likely to be violated by the expulsion of a member of a family who has been in the state for a long time if it is not reasonable to expect the other family members to join him or her. Knowledge on the part of the one spouse at the time of marriage that the rights of residence of the other were precarious, militate against finding that the exclusion will violate Article 8. Where the interference of a family’s rights is justified in the interests of controlling immigration depends always on the particular facts of the case and the circumstances prevailing in the state to which the person would be returned to.
The Use of Article 8
In practice as a human rights solicitor, I utilise Article 8 arguments in cases where for example there are children from a previous relationship and the child should not be facing separation from one parent or another.
The question of the repeal of the Human Rights Act 1998 is a live issue. Membership of the European Union has been not only a source of rights but also gives protection of the European Convention on Human Rights and its status in the UK. It will be possible for the UK to leave the European Convention on Human Rights behind once it is outside the EU.
A Short History of Human Rights
EU member states are well integrated within the most comprehensive system aimed at the protection of human rights. It is due to historical reasons following World War II. This caused a post-war consensus where Governments not only recognised the atrocities, but also tried to seek and implement new systems where basic rights would be protected and mass abuse prevented. In these early years institutions were built including the Strasbourg based European Court of Human Rights (ECHR).
The United Kingdom ratified the Convention on Human Rights in 1951 and since then ECHR is an important body guaranteeing a higher level of human rights protections in the UK. In the UK the European Convention for the Protection of Human Rights has been implemented by the Human Rights Act 1998, and section 2 of the Human Rights Act requires all domestic Courts to take into account decisions of the ECHR. ECHR and European Convention for the Protection of Human Rights plays one way, connecting the UK protection of human rights to the international scrutiny.
After the UK’s entry into the UK in 1973 the international level of human rights protection increased by opening a second way to the international scrutiny. The UK as an EU member state had to obey the rulings of the Luxembourg based European Courts of Justice, the nature of ECJ differs from the ECHR as it does not deal with individual complaints against alleged breaches of the European Convention for the Protection of Human Rights, but rather ECJ interprets the EU laws and rules about the treaty’s violations. It mainly deals with requests from national Courts during preliminary ruling procedures, in order to interpret some provisions or decide about the validity of EU institutional acts.
What now for the Human Rights Act?
If the UK were to abolish the Human Rights Act this would be an advantage to the UK Government as this would be seen as the Government cutting the formal ties between the ECHR and the British Courts. The Supreme Court rulings for the UK would run supreme if the Human Rights Act were to be repealed due to the ECHR being unable to overrule, or at least politically influence decision made by the British Courts in human rights matters and would not be able to force or dictate any changes in the UK laws.
However, challenging the Ruling given by a British Supreme Court could still be brought before the ECHR in Strasbourg for an appeal decision although this procedure would be made more difficult and also take a lot longer to be heard. According to the Director of Liberty this would be the gravest threat to freedom in Britain since the Second World War.
The main concern for me as a practitioner is that the political attitude towards human rights might change and might not match international standards. The legal system would not be under the supervision of the European Commission who acts as a watchdog in the field of human rights and the Courts would no longer be under the obligations of the current section 3 of the Human Rights Act, which obliges them to interpret domestic statute in a way that reflects the European Convention of Human Rights.
What would the UK gain from abandoning the Human Rights Act?
The UK would gain greater autonomy on decisions such as deportation and terrorism and the UK citizens would no longer have the right to take the Government to the Human Rights Court in Strasbourg. It is safe to say that the UK could not gain full control of its Human rights without some form of condemnation from the international community and from those within the European Union.