Introduction

What role do Article 3 and Article 8 of the European Convention on Human Rights (ECHR) play in allowing foreign nationals to enter into and remain in the UK? Is there any basis to consider their role and use improper? Coverage of these issues in the media and in much of what passes for political debate generates more heat than light. Moreover, their role in immigration cases is easily muddled up with other overlapping issues such as economic migration policy and the operation of border control.

Stepping back from the furnace of media controversy, what do we find? As will be seen, Article 3 ECHR supports the principle of customary international law that a person must not be sent to a country where there is a risk of torture, persecution, or other ill-treatment (the principle of non-refoulement). That is a principle by which the UK is bound and one which reflects the prohibition on such treatment in the UK itself as a matter of common law and UK legislation. Put shortly, British legal and political values articulate abhorrence of such treatment and proscribe it. Both in English civil law (tort law) and criminal law there are remedies for being a victim of such treatment.

In turn, Article 8 ECHR buttresses domestic UK immigration policy in respect of the provision for family members, with a role that complements and re-enforces the public interest. In the handful of cases where it is decisive in protecting an individual’s interests, it is generally British citizen family members resident in the UK whose interests are protected.

Article 3 and 8 ECHR cases are resolved by UK decision makers, courts, and tribunals. Only an infinitesimal number are decided at the European Court of Human Rights (ECtHR). Even there, in Strasbourg, the UK usually prevails.

The ECHR

Article 3 and 8 are part of the ECHR, an international agreement of the Council of Europe (CoE), a pan-European body setting standards for the rule of law and human rights in democratic societies in the European region. The CoE also provides a place for the making of multilateral treaties on substantive issues of common concern, such as extradition, mutual assistance in tax matters, and cybercrime. The UK is a member of the CoE and has ratified the ECHR; the latter being the CoE’s principal multilateral treaty. The ECHR provides a catalogue of rights that serves to reinforce the common, shared, political and legal values of the liberal, democratic, states of Europe. Only delinquent, authoritarian, states such as Russia and Belarus are beyond its reach.

The ECHR is a treaty commitment freely entered into by the UK (signed 1950, ratified 1951) and by other European states. It re-enforces the provision each state makes in its own domestic law for the protection of fundamental rights and the limitation on the use of arbitrary power. By providing a backstop of common standards, it provides reassurance for each participating state that the others share its legal and political values, thus enabling further co-operation on areas of mutual concern.

The ECHR protects core human rights, among which are the right to liberty and security (Article 5), the right to a fair trial (Article 6), freedom of expression (Article 10), the right to to marry (Article 12), and the right to free elections (Article 3, Protocol 1).

By way of Article 3 the ECHR provides that no one shall be subjected to torture or to inhuman or degrading treatment or punishment. The protection afforded is absolute. Where a person faces the prosect of expulsion from the UK to place where they face a risk of torture or ill-treatment, Article 3 is infringed, see Soering v United Kingdom (Application no. 14038/88) at §§88-91 . As noted above, as regards domestic law, Article 3 ECHR’s prohibition is in harmony with UK legal policy as regards the prohibition on torture and ill-treatment. As regards international law that prohibition is found not only in customary international law but also in the universal 1966 UN International Covenant on Civil and Political Rights, the 1984 UN Convention against Torture, and the 1951 Refugee Convention; all of which the UK has ratified and by which it abides.

By way of Article 8, the ECHR protects the right to respect for family life and private life. That does not mean that any family life asserted by an individual is a trump card that allows a person to remain in the UK. Article 8 rights are limited by the proviso that a balance has to be struck between a person’s Article 8 rights (if they are found to have any) and the public interest in public safety, economic well-being, and the prevention of disorder or crime, etc. As immigration control engages such matters, it is embraced as part of the public interest that must be weighed in the balance. In that regard, in the interpretation and application of ECHR it is uncontroversial as a matter of international law that a state has the right to control the entry of non-nationals (aliens) into its territory, see Abdulaziz, Cabales and Balkandali v United Kingdom (Application no. 9214/80; 9473/81; 9474/81) at §67. Against that backcloth, a state that chooses to be bound by the ECHR, and thus by Article 8, hands its decision makers a tool that enables them to measure and calibrate how that right of immigration control will fall to be applied in individual cases where the generality of the law does not provide a solution. That enables is a just disposal of all that state’s legal and political values that are engaged.

The ECHR in UK law

In domestic UK law, Article 3, Article 8 and other ECHR provisions are given effect by means of the Human Rights Act 1998. By that Act, as a general proposition, is it unlawful for a public authority to act in a way incompatible with a protected Convention right (sections 1 and 6, and Schedule 1). Thus, public authorities need to act compatibly with protected ECHR rights. Where they do not, provision is made a for remedy in an appropriate court of tribunal (section 7). By such means, decisions that affect individuals are made human-rights compatible. Moreover, when interpreting a Convention right, a UK court need only ‘take into account’ a decision of the ECtHR in Strasbourg; it is not bound by that decision (section2).

On the very rare occasions in legal proceedings where a provision of an Act of Parliament is declared by a court to be incompatible with Convention right (where it cannot be interpreted compatibly and thus where it manifests a Convention violation), the courts (even the Supreme Court) do not have the last word. Parliament remains supreme and may decide to take no action rather than rectify the law (sections 3, 4, and 10) to make it Convention compliant. Further, absent such rectification, the Act of Parliament remains valid, continues to operate and may be enforced. By such means is the principle of the parliamentary sovereignty preserved, while protecting fundamental rights. By such means is the UK’s political constitution maintained.

Article 3 ECHR, the Immigration Rules, and appeals

Among other things, the UK’s Immigration Rules make provision for the government’s policy as to when it will recognise a person as a Refugee (entitled to Refugee Convention protection) and grant them asylum (permission to remain) as a matter of domestic policy (see Part 11 to the Immigration Rules). That Refugee status determination procedure enables the UK to fulfil its Refugee Convention commitments and to uphold the principle of non-refoulement (that a person is not to be expelled to a placed where they face a risk of torture, persecution, or other ill-treatment). Article 3 ECHR protection is folded into that determination procedure as a form of complementary protection (called humanitarian protection) where a person faces such risks (say from a civil war) but not for a Refugee Convention reason (such as holding a political opinion, or on grounds of religion). The procedure as a whole provides the means by which the UK acts in accordance with its own legal and political values, as well as acting according to its freely-entered-into international commitments.

Thus, Article 3 ECHR prevents an asylum-seeker being returned to their own country, prior to a determination of whether they face a risk of torture or ill treatment. If they are refused asylum by the Home Office, there is a right of appeal to an immigration tribunal (Part 5 of the Nationality, Immigration, and Asylum Act 2002), which acts as a check by an independent and impartial tribunal as to whether the person does face these prohibited risks and requires surrogate protection in the UK. A House of Commons Library Paper on Asylum Statistics (1 September 2025) records that “[b]etween 2004 and 2021, around three-quarters (76%) of main applicants refused asylum at initial decision lodged an appeal and around a third (33%) of determined appeals were allowed”. As can be seen, in many cases the Home Office errs in failing to grant asylum to those persons who need it. In that context, the value of immigration tribunal appeals is clear: they enable the UK to live by its legal and political values by ensuring that no one is expelled from the UK to a place where they face a risk of torture or ill treatment.

The determination of an asylum-seeker’s protection needs (including those engaging Article 3 ECHR) and the right of onward appeal is the default procedure for determining and adjudicating upon an asylum claim. However, where a person may be returned to a safe third state (not the person’s home country), the Home Secretary may certify an asylum claim as inadmissible for Refugee Convention purposes and ‘clearly unfounded’ for human rights purposes, so as to preclude a Refugee status determination and any right of appeal (see ss. 80B-80C of the Nationality, Immigration and Asylum Act 2002, and s. 33 of and Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc. Act 2004). By such means, the decks are cleared for early removal of the person to that third state.
The use of that procedure was held not to be lawful when the last Conservative government used it to advance a scheme to transfer asylum seekers to Rwanda (a country with which they had no prior connection), as there was a risk of onward refoulement from Rwanda to their home countries where they faced a risk of torture or ill-treatment contrary to Article 3 ECHR; see R(AAA) v Secretary of State for the Home Department [2023] UKSC 42. However, its use under the current Labour government to transfer asylum-seekers to France under the August 2025 UK-France Agreement on the Prevention of Dangerous Journeys does not face the same hurdles. Like the UK, France is a member of the CoE. As such it is bound by the ECHR including Article 3. It is bound also by the European Union’s Common European Asylum System laws, as well as by its own constitutional standards for human rights protection. In the case of Rwanda, there was powerful evidence of defects in asylum procedure and judicial supervision of government action. There is not the same evidence in respect of France. At the time of writing (September 2025), no application for an interim injunction to resist removal to France under the Agreement has succeeded solely on the basis that there is risk of an Article 3 ECHR breach there. Thus, generally speaking, on current evidence, Article 3 ECHR does not prevent removal to France.

Article 8 ECHR, the Immigration Rules, and appeals

Among other things, the UK’s Immigration Rules make provision for the government’s policy as to when family reunion may take place, for example in the situation where a UK-resident British citizen has a foreign national spouse or child and aspires to live with them in the UK (see Appendix FM to the Immigration Rules). The rules are made by the Home Secretary and require satisfaction of demanding conditions, including as to income (presently, an income of £29,000 is required to apply to bring in a spouse), before a person may be granted permission to enter and reside in the UK with their British citizen family member. In the application of these home-made immigration rules, Article 8 ECHR provides a backstop for the small, residual number of hard cases or unusual cases for which the rules, being general in nature, make no provision. It provides an extra tool for decision-making that enables a just disposal of all that state’s legal and political values that are engaged. It acts as a check on the use of power in the interests of the rule of law. It is of value to British citizens who reside in their country, the UK, and who wish to do so with their loved ones who hold a foreign nationality.

As regards Article 8 ECHR and immigration policy, there are also some cases concerning foreign nationals convicted of criminal offending who stand to be deported from the UK. Some of these people seek to resist deportation in the basis of having UK-resident family members, again typically, a British citizen spouse or child. It is those cases that tend to get media attention, not least where there is egregious criminal offending.

As regards foreign nationals with criminal convictions who are subject to deportation, Article 8 ECHR affords them little possibility of relief. Both within the Immigration Rules (Part 13) and, on appeal, by means of Part 5A of the Nationality, Immigration and Asylum Act 2002 (2002 Act), the public interest to be taken into account is set at a very high level when applying Article 8 ECHR. Thus, both the Home Office (in deciding whether to proceed with deportation on consideration of human rights arguments raised as a defence) and immigration tribunals (on appeal), are bound to apply that high level of protection afforded to the public interest when striking the balance for Article 8 ECHR purposes.

For example, for appeals before immigration tribunals, Parliament has set out how the public interest is to be considered when striking the balance between an individual’s interests and the public interest. Section 117C of the 2002 Act provides that the deportation of foreign criminals is in the public interest. It also states that the more serious the offence committed by a foreign criminal, the greater the public interest in the deportation of that person.

Section 117C of the 2002 Act also provided that where a sentence of imprisonment is less than four years one of two exceptions must apply for Article 8 ECHR to make difference. The first is that the person must have been lawfully resident in the UK for most of their life, socially and culturally integrated in the UK, and there would be very significant obstacles to their integration into the proposed country of return. The second is that they have a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of their deportation on the partner or child would be unduly harsh. Where the period of imprisonment is at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described above. In applying the law made by Parliament, the courts have been vigilant in ensuring the maintenance of the high standard set for the public interest as it applies for Article 8 ECHR purposes, see for example HA(Iraq) v Secretary of State for the Home Department [2022] UKSC 22 with its reference to a ‘highly elevated’ threshold beyond severe or bleak for any exception based on whether deportation would be unduly harsh for a child left behind.

As has been shown, the public interest in immigration control is already well protected by Parliament and by the courts. Nonetheless, the Home Office intends to bring forward a Bill to give further weight to that public interest when it is weighed in the balance agaianst a proposed deportee’s interests for Article 8 purposes. The ambition is that fewer cases will be treated as ‘exceptional’, see the press release ‘ECHR “must evolve” to restore public confidence in rule of law, says Lord Chancellor’ (18 June 2025) . Consistent with the principle of evidence-based policy making, as a support to any Bill brought forward, the government will no doubt lead evidence of the need for such a reform. At present, that need is yet to be established.

Human rights cases and appeals involving a foreign national with criminal convictions are rarely won by the person concerned and even then, only on exceptional facts, for example where there is a sick British citizen child with care needs who needs that parent to look after them. In a recent report, the Bonavero Institute of Human Rights estimates that the number of deportation appeals won by reference to Article 8 ECHR is about 2.5% of those deported within the period considered (April 2016 to November 2021) (p. 21). Further, in the 15 months to June 2021 only 45 deportation appeals were allowed by the First-tier Tribunal on human rights grounds (p. 20). That is not many. Further, not all of these will have been on Article 8 ECHR grounds and as the Bonavero report notes, some of these might have been overturned on appeal to the Upper Tribunal.

In sum, the public interest dominates Article 8 ECHR consideration and the numbers of those whose interests are found to outweigh it are very small. Moreover, it should be stressed that in practice almost any Article 8 ECHR case also involves a British citizen family member whose interests also cry out for protection.

Thus, great caution should be taken by taken when reading media reports of a dislike of foreign chicken nuggets or an affection for a pet being the central issue in any cases. If such matters sound like a fantastical basis for deciding an immigration appeal, or as a matter making the material difference, that is because in reality immigration appeals are not materially determined by reference to such matters. Anyone who has had to argue a human rights appeal before an immigration tribunal can confirm, the law privileges the public interest, judges apply that law with rigour, and is only in exceptional cases (almost invariably concerning British citizen family member or severe health issues) that an appeal is allowed on Article 8 ECHR grounds.

The European Court of Human Rights

As for the ECtHR, UK immigration cases barely feature there; UK domestic appeals are where immigration cases end in all but a literal handful of cases. There is a right of petition to the ECtHR in Strasbourg once domestic remedies have been exhausted. However, the chances of a successful outcome are miniscule. Only a small number of applications are made. Of those, the vast majority are filtered out at the admission stage, for example on the basis that they are manifestly ill-founded. Even at that stage it can be seen that the UK like other states enjoys a wide margin of appreciation for its judicial decisions. Thereafter, of the tiny number of cases that progress to a full hearing, most are won by the UK. Since 1980 there have been only 29 UK deportation cases decided by the ECtHR, of which the UK won 16 (see the Bonovero report at p. 24). Of the 13 won by individuals, only four concerned Article 8 ECHR, with a mere nine concerning Article 3 ECHR risks. The reality is that Article 3 and Article 8 ECtHR judgments make little difference. True it is that the ECtHR’s judgments set the framework for domestic judicial consideration. However, even then, as noted above, by section 2 of the Human Rights Act 1998 a UK court or tribunal need only ‘take into account’ Strasbourg judgments; it is not bound to follow them. In ordinary appeals in UK immigration tribunals, it remains the case that Article 3 ECHR issues are protected without recourse to Strasbourg, and as regards Article 8 ECHR, it is the public interest, as determined by the UK Parliament in principled legislation, is usually decisive when applied to the facts of a deportation case.