Article 8 of the ECHR has had any significant impact on UK immigration law in family visa

applications.
The issue has received considerable political and public attention in the United Kingdom, it
includes with consultations of, raising of the minimum age for spousal migration, the
introduction of pre-entry English language requirements for spouses, and a stated goal to
cap immigration numbers.
The right to a family life is an internationally recognised human right, according to
Article16(3)[1]of the 1948 Universal Declaration of Human Rights, as well as Article23(1) of
the 1966 International Covenant on Civil and Political Rights [2]and Article 8 of the European
Convention of Human Rights (ECHR).[3] Article 8 ECHR has been introduced into English law
through its inclusion in the Human Rights Act 1998[5], and it's therefore the most relevant
legislation is based on the non-national family reunification in the UK. Which says as “There
shall be no interference by a public authority with the exercise of this right except as
required by law and in a democratic society in the interests of national security, public
safety, or the economic well-being of the country, for the prevention of disorder or crime,
the protection of health or morals, or the protection of the rights and freedoms of others.”
Article 8 includes both pro and con obligations. The state has a negative obligation not to
infringe on privacy rights, but Strasbourg case law has also extended Article 8 to impose a
positive duty to take measures to prevent private parties from infringing on these rights. [4]
A major issue is the requirement that the sponsor of a spouse meet the financial income
requirement of £18,600 per year and that the spouse have Basic English competence. The
requirements for immigrants wishing to bring in additional family members are also
strenuous and implicit on meeting certain criteria, and will be considered "exceptional and
compassionate circumstances." In the case of MM vs. SSHD, Blake J stated that the
requirements were not illegal in itself because they did not ordinarily demand in a non-
compliant manner. To achieve the policy's legitimate goals, the CA overturned the decision
on the grounds that exceptions could be made in certain circumstances, making it
compatible with human rights.
In the case of Bibi, the Supreme Court took a more aggressive stance than the Court of
Appeal, demonstrating the Court's position that the Home Office should not ignore its duties
under Article 8 ECHR by citing 'exceptional' cases, which are frequently written and applied
maliciously.

1
Universal Declaration of Human Rights Article, 1948, Article 16(3)
2
International Covenant on Civil and Political Rights 1966 Article 23 (1)
3
European Convention of Human Rights 1950, Article 8
4
(1) X (2) Y v the Netherlands (1985) 8 EHRR 235.
A family life can be formed through the following relationships:
 Close family relations 
 Husband / wife or Civil Partnerships 
 Unmarried and Same sex Partners (there is no requirement for them to have at
least 2 years of relationship, unlike under the immigration rules). 
 Parent / Child / Adopted Child 

 Wider Family relations 

 Grandparents/ Grandchildren 
 Uncles / Aunts 
 Nephews / Nieces
 Adult Siblings 
 Parents / Adult Children 
 Foster Families 

Since the first draft of Article 8, the concept of "family" has changed dramatically due to
changing social norms and advances in reproductive technology. Ties between family
members no longer have to be biological, and biological ties can emerge from the
laboratory. Theoretically, same-sex parents, foster parent versus birth mothers, and
caregivers rather than parents should all be able to claim family bonds under Article 8.
However, the Strasbourg Court has refrained from broadening the scope of Article 8 to
protect transsexual's right to adopt Frette v France5.
The prioritisation of marriage as part of the right to family life has been a source of great
misery, as human traffickers have attempted to profit from a loophole in immigration
controls by bringing potential "wives" into the United Kingdom. Efforts by the government
to eliminate forced marriage by refusing visas to non-resident spouses under a certain age
have been thwarted by courts upholding Article 8.[6]
Nonetheless, immigration officials do have the right to deport even where it is clear that
Article 8 ECHR provides protection, under the Immigration Act 1971, where the Secretary of
State considers that the deportation is conducive to the public good.
Different rules apply to different types of family members. Family relationships can be
complicated, and one issue that has arisen is the need for authorities and courts to
determine who has the right to family life. As in the case of Kehinde v Secretary of State for
the Home Department, this occurs when one family member is removed. The authorities
had interpreted the Immigration Act rigorously and the case was upheld on appeal under
Section 65 of the Immigration and Asylum Act 1999 [7], which is now Section 82 of the

5
Frette v France (2004) 38 EHRR 21
 R (on the application of Quila and another) (FC) (Respondents) v Secretary of State for the Home
6

Department [2011] UKSC 45
7
Kehinde v Secretary of State for the Home Department [2001] UKIAT 00010.
Citizenship, Immigration and Nationality Act 2002 Asylum [8]. In the case, it was argued that
the authorities were under no obligation to examine “claims relating to the human rights of
anyone other than the applicant or of persons who were not themselves the subject of a
contested decision” and that such allegations are irrelevant. .

Conclusion:
Article 8 applies to all immigration decisions to varying degrees, and where a person does
not have the right to enter or remain in the UK under the Immigration Rules or the EEA
Regulations, Article 8 may provide a basis for stay. Article 8 of the European Convention on
Human Rights cannot be interpreted as granting a blanket right to family life in all cases, the
particularities of each case must be examined in their entirety and distinguished from
previous cases, which do, however, provide a useful guide. Under Appendix FM of the
Immigration Rules, the UK has also incorporated the use of Article 8 and how it will be used
to decide client cases. The courts must strike a balance between the right to family life and
the right to control the border and limit excessive immigration, while also placing a priority
on key issues such as national security.

8
Nationality, Immigration and Asylum Act 2002. Section 82