Two instruments, one set of rights
The European Convention on Human Rights is a treaty of the Council of Europe, an organisation separate from the European Union, which the UK helped to write after the Second World War and which still binds the UK. The Human Rights Act 1998 brings those rights into UK law, so that a person can rely on them before the Home Office, the tribunals and the courts here. Leaving the European Union did not change this.
The rights that matter in immigration cases
| Article | What it protects | How it arises |
|---|---|---|
| Article 2 | The right to life | Where removal would put a person’s life at real risk |
| Article 3 | No torture, or inhuman or degrading treatment | Asylum and protection claims, and serious illness cases. It is an absolute right with no balancing |
| Article 4 | No slavery or forced labour | Trafficking and modern slavery cases |
| Article 5 | Liberty | Unlawful or prolonged immigration detention |
| Article 6 | A fair hearing | The fairness of procedures and appeals |
| Article 8 | Respect for private and family life | The most common ground: family and private life claims |
Article 8 in practice
Article 8 is a qualified right. The Home Office may interfere with it, but only where the interference is lawful, has a legitimate aim, such as the economic well-being of the country and effective immigration control, and is proportionate. A decision maker must weigh the public interest against the effect on the person and their family. Parliament has set out in statute what weight to give some factors, for example that the public interest favours removing people who cannot speak English or support themselves, and that little weight is given to a private life built while a person’s status was precarious. The best interests of any child are a primary consideration. See human rights and private life applications.
Article 3: the absolute protection
A person cannot be sent to a place where there is a real risk of torture or inhuman or degrading treatment, however serious their offending. In a small number of cases, serious illness with no access to treatment on return can engage Article 3. These claims are evidence-heavy: expert medical and country reports are central. See claiming asylum.
How the rights are used
- In an application, where the Home Office must consider whether refusal would breach a person’s rights.
- In an appeal to the First-tier Tribunal, where a refusal of a human rights claim carries a right of appeal. See immigration appeals.
- In a deportation case, where a person challenges removal on the ground that it would be disproportionate or unsafe. See deportation and removal.
The political debate
The Convention and the Act are the subject of political argument. Proposals to change how the rights are applied in immigration cases come and go. Until a change is made in law, the rights apply as they do now. We track proposals and tell you when they matter to your case.
How we help
We assess whether a human rights argument is open to you, build the evidence, and put it before the Home Office or the Tribunal. We prepare and file the Notice of Appeal where there is a right of appeal. We do not bring judicial reviews or other court proceedings. Book a consultation below.
