Article 8 European Convention on Human Rights - Key Caselaw

Here are key UK and European cases interpreting Article 8 of the European Convention on Human Rights (ECHR)—the right to respect for private and family life—in the immigration context. These cases shape how UK courts and tribunals assess claims involving deportation, removal, or refusal of leave to remain:

Importance: Established the 5-stage test for assessing Article 8 claims.

Key points:

• Lord Bingham set out the following test:
   
  1. Is there interference with private/family life?
      
  2. Is it in accordance with the law?
      
  3. Does it pursue a legitimate aim?
      
  4. Is it necessary in a democratic society?
      
  5. Is it proportionate?
      

Citation: [2004] UKHL 27

Importance: Reaffirmed the independent duty of the court to assess proportionality under Article 8, not just defer to the Home Office.

Key points:

• Tribunals must assess proportionality for themselves.
   
• It’s not enough to say the decision was “not irrational”; courts must balance the rights involved.
   

Citation: [2007] UKHL 11

Importance: Confirmed that impact on all family members (not just the applicant) must be assessed under Article 8.

Key points:

• Article 8 rights are shared by all family members.
   
• The impact of removal on a UK-based child/spouse is highly relevant.
   

Citation: [2008] UKHL 39

Importance: A Strasbourg case showing that deportation of parents can breach Article 8 where children are settled.

Key points:

• The ECtHR held that deportation of a mother with children in school in Norway was disproportionate, despite immigration violations.
   

Citation: Application no. 55597/09

Importance: Reinforces that children’s best interests are a primary consideration in Article 8 cases.

Key points:

• A mother unlawfully present in the Netherlands with three Dutch children could not be removed.
   
• Her family life and long residence were decisive.
   

Citation: Application no. 12738/10

Importance: Clarified how “insurmountable obstacles” apply in spouse visa refusals.

Key points:

• Article 8 does not guarantee a right to choose where to live as a couple.
   
• Only where there are “insurmountable obstacles” to continuing family life abroad will refusal violate Article 8.
   

Citation: [2017] UKSC 11

Importance: Clarified that a child’s “unduly harsh” impact test must focus on the child, not the parent’s conduct.

Key points:

• Even if a parent committed a crime, deportation may still be unlawful if it would be unduly harsh for the child.
   
• It’s a fact-sensitive analysis.
   

Citation: [2018] UKSC 53