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Immigration and the ECHR

Some migrants whom the government wants to remove or exclude from the UK can secure residence rights by relying on the European Convention on Human Rights, or ECHR, an international treaty.

The ECHR forms part of UK law but is interpreted by a European court

Unlike other human rights treaties, the ECHR has a court to rule on whether governments are compliant. The UK agreed to let people take cases to the European Court of Human Rights in the 1960s.

In addition, the Human Rights Act 1998 made the ECHR part of UK domestic law. People can appeal against government immigration decisions, such as a family visa refusal or deportation for criminal offending, before an immigration judge in the UK if there is a human rights angle.

The 1998 act also requires the UK courts to “take into account” the case law of the European Court. As a result, the precedents set by the court in Strasbourg affect UK immigration law even if the UK is not involved in the case.

Article 3 and Article 8 of the ECHR can be used to contest immigration decisions

Under the European Court’s “living instrument” doctrine, its interpretation of ECHR rights can change over time. In the 1980s, the court began to rule that migrants could invoke Article 8 and Article 3 of the ECHR.

Article 8 protects the right to family and private life. Article 8 does not give families a right to choose their country of residence, but it may require someone to be granted residence rights depending on the individual circumstances. These circumstances, such as the strength of the family’s ties in the country of residence and the obstacles to living together abroad, have to be balanced against the state’s interest in immigration enforcement to see whether the person’s removal would comply with Article 8.

Article 3 prohibits torture and inhuman or degrading treatment. If someone would experience treatment reaching this threshold, as interpreted by the court, they cannot be removed under any circumstances.

Article 8 cases involve balancing the public interest with individual circumstances

ECHR rights are reflected in the UK’s immigration rules and appeals system. This means that people can be granted residence rights based on ECHR considerations where they would not otherwise qualify (for example, if they had been living here without authorisation).

The immigration rules on Article 8 family life include allowing people to stay if there would be insurmountable obstacles to a couple living together outside the UK or if there would be unjustifiably harsh consequences for the family. Separate rules on Article 8 private life cover scenarios where people have been living in the UK without authorisation as children or for many years.

People whose Article 8 claim is denied by the Home Office can appeal to the immigration tribunal in the UK. The judge will weigh up the public interest in immigration control against the person’s family or private life, taking a wide range of factors into account, to decide whether removal is proportionate. This is known as the “balancing exercise” or “balance sheet” approach.

In cases where the person has committed a criminal offence, legislation passed in 2014 has raised the bar for an appeal to succeed, although British judges still retain some discretion to block deportation in compelling cases.

From 2015 to 2024, around 61,000 ECHR appeals were successful in the first-tier immigration tribunal. Recent media coverage has highlighted appeals by criminals specifically, although successful challenges based solely on the ECHR represent around 3% of completed deportations for criminal offending.

The Labour government wants to reinforce previous attempts to limit ECHR rights

Under Theresa May, the Home Secretary from 2010 to 2016, the government changed the immigration rules and passed primary legislation aiming at limiting discretion in Article 8 cases. The courts have sought to demonstrate respect for this aim while upholding their role in adjudicating on what constitutes a breach of ECHR rights in individual cases.

Since taking office, the Prime Minister and several Cabinet ministers have said that they believe too many ECHR cases are successful despite not being truly exceptional. An internal government review is underway and an immigration white paper has promised legislation on Article 8.

The Conservative and Reform parties say they would leave the ECHR.