The Human Rights Act 1998 was implemented in October 2000. Since then legal provision and any decision made in respect of an individual’s entitlement to enter or remain in the United Kingdom has had to be compatible with the requirements of each of the rights set out in the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). Similarly, immigration law which predated the Human Rights Act has been placed under a legal microscope to ensure that it is human rights compliant.
Most importantly, anyone whose application for permission to enter or to remain in the UK is refused has been able, since the Human Rights Act was implemented, to appeal against the decision refusing his or her application on the basis that the decision breaches his or her human rights. This has led to a substantial body of case law from the senior courts in the United Kingdom. This law is based on judgements of the European Court of Human Rights – but as the principles in those judgements are examined and re-examined by the UK Courts, the law changes dramatically each year.
The law changes and develops most frequently in respect of Article 8 of the ECHR which protects an individual’s right to respect for his or her family and private life. The concept of private life is wide – among many other things, it encompasses the right to pursue a business without undue interference from state authorities. Unlike Article 3 of the Convention, which protects individuals absolutely from torture or inhuman or degrading treatment, violations by public bodies (generally by the Home Office) of the right protected by Article 8 are permitted, but only if the violation can be shown to be both in the pursuit of the interests specified in Article 8 (2) and proportionate to that interest.
The frequency of the changes in the law concerning proportionality as it is applied to particular kinds of immigration cases means that success or failure will often depend upon the care with which arguments are advanced and, more directly, upon the way in which the ever increasing body of case law is deployed by a legal representative.
Protecting individual and property rights lies at the heart of the Gherson firm. Our human rights lawyers have experience of conducting a broad range of cases before the UK courts and the European Court of Justice, dealing with the liberty of individuals and protecting business assets and other property rights. Our human rights lawyers have also conducted judicial reviews, including Human Rights Act challenges concerning the decisions of regulators, disciplinary bodies and government bodies.
In particular, our human rights lawyers have advised individuals on leading cases involving political asylum, the confiscation of assets and the right to a fair trial under the European Convention on Human Rights and the Human Rights Act 1998.
We act for clients on complex asylum and human rights cases, especially for those who are subject to high-profile extradition requests.
This is a dynamic area of law which remains in constant flux. Recently the government has expressed concern that the ECHR is being abused and used as a catch-all to inhibit the legitimate workings of government and to prolong attempts to escape due process. It has sought to limit its application, but to what effect has yet to be tested.