Seeing it as a clear barrier to the government’s ability to regulate immigration, a number of newspapers including the Daily Telegraph, the Daily Mail and the Daily Express have been building the case against Article 8. The view taken by critics of Article 8 has been that the UK coalition government will only be able to regain control over immigration by reviewing its use of the ECHR.
This perspective is based on two key arguments: firstly, that the government is powerless to act against “migrant criminals” and other “undesirable migrants”, because Article 8 is being used to thwart their deportation. And secondly, that the ECHR has been used to permit family reunification, even when opposed by the immigration authorities. In particular, reports have pointed to the case of a Burundian woman settled in the UK who won permission to bring her children here – a move not usually allowed.
These arguments are nonsense, as is the implicit assumption that the general right of family reunification only exists because of the unwelcome intrusion of Article 8. The right wing media might not want to acknowledge it, but current controversy about the assertion of a right to family life against the political imperatives of immigration control goes back a long way. We need to get some of the facts straight.
UK law has always presumed that people who are settled in accordance with the standard regulations should be presumed to have a right to family reunification. Going as far back as the first set of rules made under the authority of the Immigration Act 1971 we see that, subject to the condition that they could “support and accommodate” their spouses and children up to the age of 18 and unless there were compelling reasons to the contrary, dependent family members would be permitted to join the primary sponsor in the UK. Furthermore, people who had established a family life in the country would normally be permitted to continue to enjoy it unless a decision to the contrary could be justified by reference to the greater public good.
This presumption seems unobjectionable enough and the basis for sound policy in this area of public life. However, for various reasons politicians have been limiting the exercise of the right to certain groups of people. This has, for example, been applied to the family members of all women resident in the UK unless they held citizenship by virtue of their birth in the country, whilst all legally settled men, irrespective of nationality, were allowed to bring over their family members.
This act of overt gender discrimination – almost unimaginable by today’s standards – was thankfully defeated by the decision of the European Court of Human Rights (ECtHR) in the landmark case of Abdulazziz.
Governments have at times also shown their dislike for family reunification which involved people from the poorer regions of Bangladesh and Pakistan. In the 1970s and 80s tens of thousands of spouses and children were refused permission to join their sponsors in the UK on the grounds that they were held to be ‘not related as claimed’.
This strategy eventually became untenable when the advent of the DNA fingerprinting test provided indisputable evidence that, in the overwhelming majority of cases, the families were indeed related as they claimed to be.
These examples demonstrate that governments can be dangerous institutions when they are unleashed in the world of immigration policy. The record shows that their blundering and prejudices have done a lot of damage to families which, had the presumptions of UK law been properly applied, would have been able to enjoy their right to a family life.
Thankfully, as a partial redress we have the resource of Article 8. Sharp legal commentaries on the application of European law to family reunion tend to see ECtHR operating a balancing act, which on one hand acknowledges the rights of states to regulate immigration across their frontiers, and on the other recognises the need to ensure that basic principles of fairness and proportionality apply.
Critics talk up a direct opposition between the traditions of the nation state and the supra-national courts. But it is more accurate to conclude that the ECHR has played a critical role – not in creating rights which were previously unknown, but rather in ensuring that rights which were always in our system of law are applied with a sensible degree of consistency rather than in accordance with the whims of politicians.
As such, the forthcoming government consultation on family reunion for migrants will be yet another good reason for keeping Article 8 firmly in place.