Human Rights

The European Convention on Human Rights and Fundamental Freedoms 1950 has been incorporated into UK law through the Human Rights Act 1998 which came into force on 2 October 2000.  Conceptually a human rights challenge to a decision of a public body is distinct from a judicial review public law challenge although the appropriate procedure to seek a remedy against the public body may well be through an application for judicial review.

Generally, if the function performed by a body would engage the responsibility of the UK Government before the European Court of Human Rights in Strasbourg, section 6 of the Human Rights Act 1998 will apply. This provides that is unlawful for a public body to act in a manner incompatible with a Convention right listed in Schedule 1. Where a body is subject to the duty not to act incompatibly with Convention rights and breaches that duty, greater remedies can be awarded than through judicial review. Furthermore, the intensity of the review can be greater when Convention rights are in play.

In exercising powers under or outside the immigration rules, the Secretary of State must have regard to and give effect to an applicant’s Convention rights. Furthermore, in respect of the right to family life in article 8 ECHR, it is the effect on all members of the family that needs to be considered.

Where a right of appeal exists human rights issues can be determined by the First-tier and Upper Tribunal on the ground that the decision is unlawful under s. 6 HRA 1998 as being incompatible with Convention rights or that removal in consequence of the decision would breach such rights. The Tribunal must determine all human rights grounds and exercise its own judgment on the evidence before it.

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