‘The European Convention on Human Rights: a vital shield for children’s rights’

Even when not explicitly mentioned, children benefit from the same protections set down in the European Convention on Human Rights (ECHR) as any other citizen. For instance, a decision by the European Court of Human Rights, which enables people to enforce their rights under the ECHR, led to the end of the practice of judicial corporal punishment on the Isle of Man in 1978, thirty years after it had been ended in England. This decision was based on Article 3 of the ECHR, which prohibits inhuman and degrading treatment or punishment. 

The Human Rights Act, passed by the New Labour government in 1998, enables anyone, including children, to rely on their ECHR rights in UK courts without having to go to the European Court of Human Rights.

What is Article 8 about?

There’s a lot of discussion about Article 8 and the “right to respect for family life” being used to prevent the deportation of foreigners.  Article 8 states that “Everyone has the right to respect for his private and family life, his home and his correspondence.” Due to its focus on family life, Article 8 has played a particular role in protecting children. Both adults and children are protected under this right. 

READ MORE: ‘Human Rights are for everyone’ – Immigration and the ECHR

However, Article 8 is a qualified right. This means that national public authorities can restrict the right to protect the wider public interest, provided they act proportionately. In the UK, if there is reasonable cause to suspect that a parent is harming their child, the local authority should undertake an investigation under UK law, even if this interferes with the family’s privacy.

What types of cases involve Article 8?

The majority of cases invoking Article 8 that have come before the European Court of Human Rights have concerned parents and children who have been separated by the law of the country, for instance by adoption, or where a country has not recognised a particular type of family. For instance, in 1979, the court ruled that the Belgian state could not discriminate between the relationship between a child and a single mother and a child born to married parents. 

Article 8, together with Article 3 (prohibition of inhuman and degrading treatment), has also been used to achieve justice where vulnerable children have been let down. This includes cases in the UK where children have been abused in their family homes and social services have been slow to act. The Court has found that social services had breached the children’s rights, prompting a change in UK social service practice. 

So the scope of cases heard by the European Court of Human Rights under Article 8 is broad, and Article 8 should not be considered merely as a way for people to resist deportation. Since 1980, the Court has found that a UK government decision to extradite or deport someone would violate the Convention 13 times. Only four of those 13 cases concerned Article 8. 

Can an offender who is a foreign national use “Article 8” to avoid being deported? 

Listening to the media, it would seem quite reasonable to fear that large numbers of foreign nationals who should be deported from the UK are using their right to respect for family life to frustrate the decision of Parliament. But this simply isn’t true. 

In particular, there has been a lot of assertions that foreign national criminals are using the ECHR to remain in the UK. 

However, the Nationality, Immigration and Asylum Act 2002 and the UK Borders Act 2007, both passed in Parliament, make it clear that if someone who is not a British or Irish citizen commits a crime and is given a sentence of over 12 months, they should be deported automatically. 

It is written into law that the deportation of foreign criminals is in the public interest, and the more serious the crime, the greater the public interest in deportation. Those sentenced to at least 12 months, but less than four years, can avoid deportation if they can establish that the effect on a child who is either a British citizen or who has lived in the UK for seven years would be “unduly harsh”. Where a foreign national has received a sentence of over four years, there must be “very compelling circumstances” for them to avoid deportation.

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The basic fact is that having a family in the UK does not mean that a foreign national who would otherwise be deported has an automatic right to stay in the UK under Article 8.

But don’t offenders use ridiculous reasons to prove it would not be in the national interest to deport them?

Multiple cases have been reported in the media where it appears that foreign national offenders have successfully relied on petty or minor aspects of their relationship with the children in order to challenge their removal successfully. For instance, it was reported that an Albanian national successfully appealed against deportation on the grounds that it interfered with his son’s Article 8 rights, as his son disliked the chicken nuggets available in Albania. Both Kemi Badenoch and Nigel Farage leapt on this as examples of the ECHR’s ridiculousness. 

But this media coverage was inaccurate in two ways. Firstly, the dislike of foreign chicken nuggets was only mentioned by the barrister acting for the Albanian father as one example of the son’s wider Sensory Processing Disorder. Secondly, the case was appealed by the Secretary of State for the Home Department to the Upper Tribunal (Immigration and Asylum). The Upper Tribunal decided that the examples given of the effect on the son did not approach “anywhere near” the level at which the son’s Article 8 rights outweighed the public interest of deporting his father. Yet newspapers reported the story based on the initial judgment, without explaining that the initial judgment had been rejected. 

Similarly, it was reported that a court had decided that an Iranian offender had a very close relationship with his son, including cutting his son’s hair, and so deportation would breach the man’s Article 8 rights. However, it was only reported towards the very end of the story that the Upper Tribunal had already rejected this argument. The Upper Tribunal judge reiterated that the test was whether deportation would be “unduly harsh”, and though being separated from his father might be upsetting, this was below the standard for the Iranian father to be deported. 

ECHR and UK law: a fine balance to protect children

History has shown that the right to respect for family life in the ECHR is both an important protection for families against authoritarian regimes and a tool to protect vulnerable children. If Article 8 of the ECHR were removed or excluded from deportation cases, then no one would consider the consequences upon a child of deporting a parent. 

Take for instance the case of a Kenyan father who had a child who was a British citizen who was born with a serious heart defect, and who required repeated operations on the NHS. Once the father had finished his sentence for making false applications to remain in the UK, the Secretary of State for the Home Department sought to deport him. 

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He appealed to the ECHR. The ECHR placed considerable importance on the principle that deportation of foreign national offenders was in the public interest. But weighed against that was the need for the father to support his partner and his son as the sole breadwinner through his son’s future operations. This was a rare case of very compelling circumstances that allowed the father to remain in the UK. 

In the great majority of cases, the national interest in deporting foreign national offenders will be judged more important than Article 8 rights. But if we are to be a humane Labour Party and ensure protection for the children of offenders in exceptional circumstances, then we must retain the safeguards of the ECHR.

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