Article 8 of the European Convention on Human Rights (ECHR) has long been a lightning rod for attacks on the application of human rights law in immigration and asylum cases.
By Joseph Maggs, Barrister, One Pump Court
As Frances Webber wrote in her 2012 book Borderline Justice: The Fight for Refugee and Migrant Rights: “Ever since the [Human Rights Act 1998] was passed, right-wing politicians have campaigned for its repeal, and there are certain tabloids , two major ones specifically without naming names, would have you believe there are thousands of ‘illegal immigrants’ and ‘foreign criminals’ cynically using this new weapon of ‘family life’ rights” to avoid deportation or to bring family members to the UK.
As Webber wrote those words, Home Secretary Theresa May was memorably claiming that a Bolivian man had resisted deportation on the grounds that leaving his cat behind would breach his right to private and family life. This was a bogus account of what had happened, but it made all the right tabloid headlines. Along with other tendentious stories about migrants, it contributed to the political climate that produced Brexit and a series of draconian immigration statutes under successive Conservative governments.
Misinformation
Similar stories circulate under the current Labour government. A recent report by the Bonavero Institute of Human Rights, The European Convention on Human Rights and Immigration Control in the UK: Informing the Public Debate, shows that three types of misinformation about immigration cases are particularly prevalent: (1) reporting on First-tier Tribunal (FtT) decisions that have already been overturned on appeal (and therefore no longer stand) at the time of reporting; (2) reporting on arguments made by appellants or their lawyers that were not accepted by judges; and (3) misreporting on the reasons for which cases were decided.
Take a recent example. In February 2025, Shadow Justice Secretary Robert Jenrick (before his defection to Reform) and certain newspapers seized on the case of an Albanian man whose appeal against deportation was allegedly based on his son’s aversion to foreign chicken nuggets – never mind that the Upper Tribunal (UT) had roundly rejected that argument (SSHD v Klevis Disha UI-2024-004546 at [31]).
Later that month Conservative leader Kemi Badenoch raised the alarm about another UT decision. This one concerned a Palestinian family of six from Gaza whose home had been destroyed by an Israeli airstrike. They had applied unsuccessfully for entry clearance to join the father’s brother (the sponsor), a naturalised British citizen, in the UK using the form intended to help Ukrainians fleeing the Russian war.
On appeal, the FTT accepted that family life existed between the sponsor and the family under Article 8(1) but held that public interest considerations outweighed the interference with family life under Article 8(2). The UT accepted the FtT’s findings on family life but, allowing the family’s appeal, found that the proportionality assessment was flawed. Properly considered, the factors weighing in the family’s favour, in particular the dire humanitarian situation faced by the children, demonstrated that the interference had been disproportionate.
Buckling under pressure from the opposition benches, Keir Starmer told Parliament that the Gaza family had exploited a “legal loophole” of some sort. If this was a reference to the Ukraine scheme it was confused, because the family had merely used the application form relating to the scheme as a procedural gateway, as the Home Office itself advised. In fact, “legal loophole” turned out to be a euphemistic way of saying that the right to family life under Article 8 is overly broad.
The Gaza family case was one of the main triggers for Home Secretary Yvette Cooper’s announcement in March 2025 that judges and Home Office caseworkers would be told to apply Article 8 more strictly in immigration cases. Going even further, in June, Justice Secretary (and now Cooper’s successor as Home Secretary) Shabana Mahmood gave a speech to the Council of Europe declaring her intention to legislate to further limit Article 8. Meanwhile in Europe, nine states led by Denmark and Italy (and not including the UK) issued an open letter calling for reform of the ECHR in order to make it easier to deport, and prevent the entry of, migrants.
IA and others v SSHD [2025] EWCA Civ 1516
With these developments unfolding in the background, the Court of Appeal considered the Home Secretary’s appeal in the Gaza family case, which was brought on three grounds: (1) there was no family life between the sponsor and the family under Article 8(1); (2) even if such family life existed, the UT was wrong to consider the free-standing Article 8 rights of the family, rather than only those of the sponsor, when conducting the proportionality exercise under Article 8(2); and (3) the UT gave too much weight to the risk to family’s dire situation in Gaza and too little weight to the importance of immigration control and the short-lived nature of the family life.
The Court of Appeal handed down its judgment in IA and others v SSHD [2025] EWCA Civ 1516 in November 2025, allowing the appeal on grounds 1 and 3, and partly on ground 2. The appeal was academic because the family had been granted entry clearance but went ahead as it raised points of general importance.
Narrowing the test for family life
At [42] to [84] the Court provided a detailed overview of the jurisprudence of the European Court of Human Rights (ECtHR) and relevant domestic cases. The Court emphasised at numerous points that the case law was “consistent” that family life is normally limited to the “core” family, and that there is no family life between parents and adult children or between adult siblings unless there are “additional elements of dependence, involving more than the normal emotional ties” [113]. This is a “fact-sensitive exercise that is to be decided on a case-by-case basis” [119].
This was the test articulated by the ECtHR in Kumari v. the Netherlands 44051/20, 10 December 2024 and Alvarado v. The Netherlands 4470/2110 December 2024, and domestically in Beoku-Betts v SSHD [2008] UKHL 39, The Court underlined that the domestic courts should “go no further than they can be fully confident that the ECtHR would go” [40] and that they have “universally demonstrated their willingness to follow the consistent jurisprudence of the ECtHR” [117].
The FTT erred in equating “dependency” with “real, effective or committed support”, the test set out obiter by Lord Justice Sedley in Kugathas v SSHD [2003] EWCA Civ 31. The real support test was lower than the additional dependence test because “the level of real support, for example, may be minor or insignificant, whereas the word ‘dependency’ denotes a significant relationship” [123]. The UT had been wrong to find no difference between them.
Accordingly, the FTT and UT’s findings on family life could not stand. Applying the higher dependency test, the Court concluded that the relationship between the sponsor and the father (let alone the rest of the family) did not amount to the level of dependence needed to establish family life under Article 8(1).
The scope of family life
The second ground was academic in light of the finding that there was no family life, but the Court considered it given its general importance. At [86] to [100] the Court undertook another case law survey, this time in respect of how the rights of family members outside the jurisdiction of the ECHR should weigh in the proportionality exercise under Article 8(2).
The “main focus” of the proportionality exercise is the Article 8 rights of the person within the jurisdiction of the ECHR (the sponsor) and any pre-existing family life that he has with family members outside the UK. So if the Court had accepted that there was family life between the sponsor and the father, the “unitary” nature of family life would only concern those two. It did not automatically extend out to encompass the wider family, and as such there is no “positive obligation to admit every member of the wider family” [143].
The balancing exercise
The third ground was also academic but was, again, important enough to consider. The Court found that the “balance sheet exercise” required under Article 8(2), identifying and weighing the factors on each side, had been poorly conducted by the UT. For example, the UT gave undue weight to the relationship between the sponsor and the father despite it having been “rekindled in the knowledge that the family had no right to enter the UK” [151]. The UT had also overemphasised the plight of the children given that the UK is “simply not responsible for the risks faced by persons in a foreign war zone” [155] (a claim which anyone familiar with the role of Britain in Palestine would, of course, dispute).
The Court found that the UT had only paid lip service to key policy considerations, particularly “the [Home Secretary’s] policy reflecting the public interest in maintaining effective immigration control” [166]. The fact that the family did not satisfy the Immigration Rules, and the absence of a resettlement policy for Palestinians from Gaza akin to the Ukraine scheme, were particularly significant factors. In Sofian Majera v SSHD [2025] EWCA Civ 1597, a judgment handed down after IA, the Court of Appeal noted that IA “underline[s] the need for proportionality assessments in this field to accord appropriate weight to immigration policy” [75].
Proposed changes
In a recent report on the ECHR for Badenoch, Shadow Attorney General Lord Wolfson argued that the domestic courts have adopted “an extremely broad interpretation” [45] of family life under Article 8 and have made rulings that “go beyond what the ECtHR case law nominally requires” [50]. Wolfson cites the UT decision as an example of this. The Court of Appeal judgment, with its narrower interpretation of family life and emphasis on the harmony between the domestic and Strasbourg law, can be read as an indirect response to these sorts of criticisms.
This has not dissuaded Mahmood of the need for reform. In her policy paper on “Restoring Order and Control”, she proposes limiting Article 8 through primary legislation in three ways: (1) giving the public interest in immigration control “much greater emphasis” in the proportionality exercise; (2) defining “family life” to mean immediate family members, unless other family members “are acting in a parental capacity or there is a different, exceptionally close link”; and (3) restricting Article 8 claims from being made outside the UK, and prescribing “how and when” they can be made in relation to removal and deportation.
Whether any of these reforms will have an impact remains to be seen, given that they do not, on the face of it, appear to depart significantly from the position established in IA. Absent leaving the ECHR, they will also need to be interpreted, as far as possible, compatibly with the principles established in Strasbourg case law. It may be that all the Home Secretary achieves is drawing more attention to Article 8 – and the Human Rights Act and the ECHR – and ensuring that it remains a target for future governments hostile to human rights.
Joseph Maggs, Barrister, One Pump Court
