Article 8 ECHR, family reunification, and the UK's Supreme Court : family matters?

Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (Council of Europe, signed 4 November 1850, entered into force 3 September 1953) (ECHR). 1 Introduction: Family Reunification, Human Rights and Judges I. ABOUT THE BOOK ## F amily is central to human existence. Most of us rely, as infants and usually throughout our lives, on a small group of others, connected by ties of biology or affinity, for material, physical and emotional support. Living in proximity to those we love most is often necessary for human happiness and security. 'Family values', however nebulous or mutable, carry strong moral weight and governments generally aim, or say they aim, to promote the well-being and stability of family life. International human rights instruments all contain commitments, sometimes spread over several clauses, that recognise the status of family and provide for its protection. Governments do sometimes break up families, but the reasons for doing so must be weighty. A child may be removed from abusive or neglectful parents. Serious criminal offenders are separated from their family by imprisonment. Visa refusals and expulsions regularly lead to unwanted and distressing family separations. That the last of these has become so normalised reflects the assumption that immigration control is a factor of such importance that it stands alongside child abuse and serious crime as a reason to keep families apart. It is an assumption that is deeply contested, however, by thousands of binational families who cannot understand why their needs and interests carry so little weight. This contestation is played out through politics, media and law. This book is about its playing out in human rights law, in particular, in decisions made by the UK's Supreme Court (the Court) between 2007 and 2017 on the application of Article 8 of the European Convention on Human Rights (ECHR), the right to respect for family life, under the Human Rights Act. 1 The Court's early decisions consistently centred family life. This was the first time that I had seen a court recognise the needs of binational families in an immigration context, but, as the book will show, gains were precarious and could not be sustained in the face of government opposition and a changed composition of the Court. Acknowledgements Contents Table of Cases Table of Legislation 1. Introduction: Family Reunification, Human Rights and Judges I. About the Book II. Chapter Outline III. Family Reunification IV. Human Rights and Family Life V. Judges VI. Methodology 2. Introduction to the UK's Constitutional, Court and Immigration System I. Introduction II. The UK's Legal and Constitutional Framework III. The Human Rights Act 1998 IV. Regulating Family Reunification in the UK V. The Immigration Control Framework in the UK VI. Appeals and the Court System VII. Conclusion 3. The European Court of Human Rights: Strait is the Gate I. Introduction II. Why Is Family Reunification and Article 8 So Problematic? III. Article 8(1): Family Life IV. Article 8(2) Proportionality 1: Immigration Controls, Positive Obligations and the Margin of Appreciation V. Article 8(2) Proportionality 2: Fair Balance VI. Conclusion 4. Huang: Breathing Life into Article 8 I. Introduction II. The Immigration Battleground III. A Sense of Judicial Purpose IV. The Legal Problem Addressed by Huang V. The Legal Findings in Huang VI. 'Human Beings Are Social Animals' VII. The Aftermath of Huang VIII. The Significance of Huang and Its Limits IX. Conclusion 5. 'Good News from on High': The First Post-Huang Phase I. Introduction II. Beoku-Betts: Including All the Family III. Chikwamba: Applying In-Country or Abroad IV. EB (Kosovo): Delay, Proportionality and Reinforcing Huang V. Reflections on the First Phase Decisions VI. Conclusion 6. Still Family First: The Second Post-Huang Phase I. Introduction II. Baiai: The Right to Marry III. Mahad: Third Party Support IV. ZH (Tanzania): The Best Interests of Children V. Quila: Forced Marriage and the Minimum Age for Sponsorship or Entry VI. A Complex Relationship with Article 8 VII. Conclusion 7. The Supreme Court Rolls Back: The Third Post-Huang Phase I. Introduction II. A New Background III. Ali and Bibi: Pre-entry Language Testing IV. MM (Lebanon): The Minimum Income Requirement V. Agyarko: Regularisation and Precariousness VI. Reflections on the Third Phase Decisions VII. Reflections on Huang and the Three Phases VIII. Conclusion 8. A Better Article 8 is Possible I. Introduction II. Why Human Rights? III. Stick or Twist? The Case for Treating Family Reunification as a Positive Obligation IV. Family Life beyond the 'Core' Family V. The Public Interest 1: The 'General Interest' and Family Life VI. The Public Interest 2: Immigration Control VII. Precarious Residence and Exceptionality VIII. Sponsors and citizenship IX. Family Life and Immigration: The New Approach in Practice X. Conclusion 9. Concluding Remarks I. Introduction II. The Impact of Article 8 on Immigration Policy III. The Supreme Court as a Moral and Political Actor IV. A Coherent Legal Interpretation of Article 8 V. Final Words: Making Family Matter Appendix: Content Analysis Methodology Bibliography Index How do courts reconcile protecting family life with immigration control in human rights cases? This book addresses that question through an analysis of 11 UK Supreme Court decisions on immigration and family life, mostly focusing on Article 8 ECHR, the right to respect for family life, and starting with Huang v SSHD in 2007. The analysis is set against a national context that includes the Human Rights Act 1998 and regular controversies over immigration. The book explains how the European Court of Human Rights jurisprudence has developed in recent years. It often still awards little weight to claims by citizens and residents to be joined by family when immigration status is in issue, particularly in the absence of children. This reflects governments’ resistance to encroachment on their control over borders. The Supreme Court decisions show that, despite powers conferred by the Human Rights Act, a more nuanced position in domestic law was difficult to articulate and sustain. The book explores the way in which these problems were reflected in the changing language, argumentation, and structure of judgments, which revealed judges to be strategic actors drawing on personal and institutional values and responding to the shifting political context. A more generous reading of Article 8 would be legally coherent but needs wider societal support to be realisable. The book ends with a discussion of how, if such support were present, the jurisprudence could give more weight to the needs of families. It is vital reading for anyone interested in families and immigration, and in the problems and potential of human rights adjudication. Volume 29: Human Rights Law in Perspective How do courts reconcile protecting family life with immigration control in human rights cases? This book addresses that question through an analysis of 11 UK Supreme Court decisions on immigration and family life, mostly focusing on Article 8 ECHR, the right to respect for family life, and starting with Huang v SSHD in 2007. The analysis is set against a national context that includes the Human Rights Act 1998 and regular controversies over immigration. The book explains how the European Court of Human Rights jurisprudence has developed in recent years, but, particularly in the absence of children, it often still awards little weight to claims by citizens and residents to be joined by family when immigration status is an issue. This reflects governments' resistance to encroachment on their control over borders. The Supreme Court decisions show that, despite powers conferred by the Human Rights Act, a more nuanced position in domestic law was difficult to articulate and sustain. The book explores the way in which these problems were reflected in the changing language, argumentation, and structure of judgments. These problems revealed judges to be strategic actors drawing on personal and institutional values and responding to the shifting political context. A more generous reading of Article 8 would be legally coherent but needs wider societal support to be realisable. The book ends with a discussion of how, if such support were present, the jurisprudence could give more weight to the needs of families. It is vital reading for anyone interested in families and immigration, and in the problems and potential of human rights adjudication. "This book focuses on a series of judgments by the UK's Supreme Court on the application of the right to respect for family life, contained in article 8 ECHR, to immigration decisions. These judgments have required the government to amend several aspects of its family migration policy and have become the centre of legal and political controversy, raising questions about the judicial function in a modern democracy, the influence on the legal system of European human rights law and the difficulties of controlling immigration in a globalised world. They have drawn judges into new territory and there is evidence that the senior judiciary is itself divided. Meanwhile, attempts by the government to reverse these judgments through rule changes and legislative amendment have added new layers to an already complex legal framework. In so doing, the book explains why the relationship between Article 8 and immigration is so legally and political complicated"-- Provided by publisher