Art. 8 Right to Privacy and Family Life

 

Everyone has the right to respect for his private and family life, his home and his correspondence.

A qualified right subject to exceptions that must be applied proportionately to achieving the aims of national security, public safety, the country’s economic welfare, the prevention of disorder or crime, the protection of health or morals, or the rights and freedoms of others. ECHR EXCEPTIONS TABLE

This right has two parts:

Part 1: Right to Privacy: personal and sexual autonomy
UK subjects (as they were then) had no basic right to privacy before 1966 when they were first allowed to challenge state actions at the European Court of Human Rights in Strasbourg. Then UK governments were slow to improve the situation beyond principles in our traditional law (“common law”) about confidentiality between professionals and clients. The Human Rights Act eased this by allowing privacy claims in UK courts against both the state and private concerns such as the press.

However the Right is qualified and one of the exceptions is “the rights and freedoms of others”.  The  Human Rights court at Strasbourg and the UK court system has always robustly defended press freedom as a bulwark of democracy and many cases concern the balance between Freedom of Expression of the press and the privacy of individuals.

1, Naomi Campbell’s drug addiction provoked the benchmark case where the House of Lords judge Lord Hoffman famously compared privacy under English common law with that under the Act:

Instead of the cause of action being based upon the duty of good faith applicable to confidential personal information and trade secrets alike, it focuses on the protection of human autonomy and dignity – the right to control information about one’s private life and the right to the esteem and respect of other people.
Campbell-V-MGN

2. WF age 14: Availability of medical records to accused
WF reported that she was raped. In order not to delay the accused trial she summarily agreed  for her medical records to be made available to his lawyers: apparently no one was able to explain the dangers involved. In order to successfully halt this move WF had to apply for judicial review (for which legal aid was twice refused).  Surely this shows how far we have to go before the right to privacy is fully established in the UK.
Availability girl’s personal records

Part 2: Right to Family Life

3. Family life in the context of modern reproductive technology
Z is a surrogate child conceived to an experienced surrogate mother in Illinois with the sperm of a UK citizen who was therefore her biological father. After the birth the surrogate mother gave up her maternal rights and the father brought Z home to Britain, only to discover that he was barred from registering the child as his offspring because the UK  Fertilisation and Embryology Act (2008) assumed that only couples would be registering surrogate births. The father’s lawyers argued that the Act discriminanted against single parents’ Right to Family Life and should be subject to a Certificate of Compatibility.  The judge agreed but since the issue is one of legitimate public concern he left it to Parliament to resolve or otherwise by amending or declining to amend the Act .
Surrogacy and discrimination re family life
UK Huaman Rights Blog Comment

Right to Family Life: evolving rules for immigration
4. 2007: Existence of close family ties: Chinese divorcee Mrs Huang lived in the UK. Her daughter, son-in-law and grandsons are UK citizens. The Home Office wished to deport her to China, based on the policy that the UK cannot accept all who wish to live here. Mrs Huang appealed and the House of Lords judged that even considering that policy, and even though deportation  was the minimum possible action to support it, the effect on Mrs Huang’s family life would be momentous and would violate her Article 8 rights.

Mrs Huang’s case led to Home Office “Huang Rules” which remain in the Home Office’s armoury of deportation possibilities today.
Huang-V-Home-Sec

5. 2011: Family life and the needs of children
ZH was refused political asylum in 1995. She reapplied twice in another name thus becoming a foreign criminal. She was refused but overstayed, having 2 children born in the UK. She and their father separated in 2005, but he kept in close touch with the children. When he developed AIDs, ZH again applied for asylum. The lower courts refused her, but the Supreme Court took into account the interests of these British children which were paramount noting:

…the central point about family life, which is that the whole is greater than the sum of its individual parts. The right to respect for the family life of one necessarily encompasses … the family life of others … with whom that family life is enjoyed.

During this judgment, Lady Justice Hale noted that the courts have no agreed process of determining children’s interests, and suggested that a key component of the decision should be the opinions of the children themselves, based on asking them.
ZH-V-Home-Sec (Lady Justice Hale paras 29 -3

6. 2013: Evolving rules for exceptions to the right to family life
On the other hand there is much anger that the courts allow criminals who have established a family in the UK to remain. Since Article 8 is a qualified right that can be restricted in the interests of immigration control, both Strasbourg and the UK courts allow deportation under certain controlled conditions that take into account the type and severity of the crime as well as how difficult relocation will be for the family as in the following case.

Mr. and Mrs Zoumbas are Congolese and entered the UK on stolen passports. They had three children who were not UK nationals. Their asylum claims were refused. Mr. Zoumbas disappeared and Mrs. Zoumbas and the children were deported, soon returning on another false passport. Neither parent had permission to work. They claimed benefit, but simultaneous with the claim, £27,000 anonymously appeared in their bank account. Asylum was again refused and the parents claimed the right to remain on grounds that the best interests of the children should be paramount and that it was irrational to claim that the children’s best interests could be served in the Democratic Republic of Congo.

The Supreme Court refined its ZH (above) position and held that the best interest of the children is subject to qualifications – there is no single bright rule. Firstly the situation is different for non-nationals than for nationals, and then the effect on the children’s well being must be assessed on a case by case basis (i.e. proportionately) . According to the court the parents knew full well that the arrangements they were making were insecure and that they could all be deported at any time. They had an appalling immigration history and their financial affairs were suspect. Their appeal was refused and the family was deported.
Zoumbas-V-Home-Sec .

 

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