Immigration and the European Convention on Human Rights - Essay Example

?'In making the proportionality assessments under article8 (of the European Convention of Human Rights), the best interests of the child must be a primary consideration' Discuss Name: Course: Professor: Institution: City and State: Date: 'In making the proportionality assessments under article8 (of the European Convention of Human Rights), the best interests of the child must be a primary consideration' Discuss Introduction The European Convention of Human Rights (ECHR) is a widely recognized set of principles that bestows fundamental rights and freedom to children. According to Article 8 of ECHR, every individual is entitled to private life, family life, correspondence and home rights. Besides human rights, the Article also details the grounds under which public officers can disregard such rights for the interest of better immigration checks. Nevertheless, even though Article 8 provides the guidelines for human rights, it also emphasizes the best interest of the children. However, reviews of juvenile legislations of many countries around the world reveal that several nations fail to secure the best interests of their children. The position of the UK courts in relation to case law and legislation In ZH (Tanzania) v Secretary of State for the Home Department1, the court held that whenever parents are faced with deportation, the authorities have to consider the best interests of the children especially where the children have UK citizenship. By taking into account the plight of children in this case, Lord Baroness made judgment that was in line with Article 8 of ECHR. In this case, a mother of two appealed in a court of law after facing deportation charges which could also affect her two children who were British citizens by birth. Even though the mother had attained asylum in the UK illegally, the court held that removing her would be disproportionate as it would violate the rights bestowed to the children in Article 8. Many governments are presently considering amending their immigration rules in order to have a clear legal framework in respect of a child’s best interest in any removal case. Notably, the interests of a child according to Moreham are taken care of where a child is allowed to remain with the parents in case of leaving the country.2 However, where a child is born in a country in which the parents are not domiciled and the state wishes to remove the parents, then the child can be granted temporary stay based on circumstances that best serve interest such as education or health. In Britain, for a child to be granted permanent residence after extradition of the parents, Thym observes that such a child must have been a resident for not less than six years.3 The position of the UK and the criteria used in discharging its duties and proportionality in protection of minors Under the UK immigration laws, the interests of children must be taken care of and therefore any British court should establish the reasonableness of moving a child to another country. The UK immigration Act 1971 prohibits removal of British citizens. However, in a situation where a non-citizen parent is forcefully removed and decides to move with the children, then the children will have no option but to move with the parent. Nevertheless, these children remain British citizen not only by virtue of birth, but also because they have been resident of UK in the course of their lives. Disappointingly, such children will not enjoy the privileges of growing in their own culture and therefore in carrying out proportionality assessment, the British legal system emphasizes that the best interest of a child must remain a key consideration. Where interest of a child is outweighed by other considerations and in a situation that demands strict adherence to immigration controls, Lord Hope argued that moving children to another country would be tantamount to making them lose the benefits of UK citizenship for the rest of their lives. Undeniably, there is an ensuing tension between provisions of ECHR and how the European Court of Human Rights interprets the provisions. While addressing the family rights issues, Article 8 follows hierarchical approach. In this respect, the rights of parents precede those of their children. In reference to British laws, Rogers points that the welfare of a child is prioritized in any decision.4 For instance in reference case O (Contact; Imposition of Conditions)5, the court declined to put the interests of the parents before that of their child. Nevertheless, subject to the principle of proportionality, the ECHR recognizes the rights of the entire family by advocating for balance of the competing rights. In Johansen v Norway,6 the court’s decision depicted the best interest of a child. Similarly, the European Court of Human Rights acknowledged in Yosef v Netherlands7 that considering the balancing act among other competing interests, the best interests of the child triumph. Treatment of children best interest by UK immigration laws Despite the UK government investing extensively in policy formulation that could provide guidelines on treatment of aliens, the children basic rights continue to be neglected hence placing their growth and development at risk. Disappointingly, the new laws allow detention of children seeking asylum hence resulting in separation from their parents. Although the United Nations Convention on Children Rights provides the guidelines on how to treat children, the UK government amended this convention by completely excluding the interest of asylum seeking children. This act goes contrary to ECHR requirement of best interest of the children. However, it is undeniable that the UK has indicated remarkable progress in safeguarding the interest of children especially citizens caught up in criminal justice involving their parents.8 Other international instruments that provide protection for children The United Nations Convention on the Rights of Children (UNCRC) provides the basic rights of a child. In this regard, Article 2 of UNCRC advocate for non- discrimination, Article 3, the best interest of children, Article 6 the respect of life and finally Article 12 the need to acknowledge children opinions. Undeniably, sexual abuse and molestation are part of the worst kind of violence committed against children. According to UNICEF statistics, roughly three million children enter the “sex industry” every year. However, with such worrying numbers, the United Nations came up with a framework known as the United Nations Convention on the Rights of Children1989 to ensure protection of children’s rights. This framework offered protection to children not only on sexual exploitation, but also trafficking and abduction. In addition, the framework criminalizes child pornography and also provides the right for compensation. Nevertheless, the framework is closely monitored by committee on children rights which have conceded that children in Europe are not adequately protected against sexual harassment. In this regard, the committee recommended strengthening of international cooperation and adoption of extra-territorial legislations. Other frameworks that protect the rights of children include; the Human Rights Act (HRA) and Children’s Act (CA) 1989. When provisions of ECHR Article 8 became widely accepted, most legal practitioners thought that there could be difficulties in reconciling these Acts with Article 8(2) of the ECHR. The court found it unnecessary to amend the two Acts in order to comply with the convention. Considering Payne v Payne,9 the then court president argued that HRA required no revision since Article 8 upheld children’s welfare which was considered paramount despite the conflict with adult’s right. This was also echoed by Lord Nicolls in Re B (Aminor) (Respondent)10 who pointed out that there was no need for recourse of HRA since the balancing required by Article 8 was similar to one exercised by the court in any matter involving best interest of a child. To balance among the competing rights, O’Beirne argues that the family courts should consider the following principles in carrying out the proportionality test as required by the ECHR standards.11 The first consideration is the objective being pursued to justify the fundamental rights. The other two principles echoed by Van Bueren include determination of fairness of the means selected to evaluate the rights and finally the reasonableness of the means.12 However, if these principles indicate that the decision taken is not reasonable, then the court needs to carry out a factual justification for the convention to remain practical. The Dublin II Convention on the best interests of a child The Dublin II convention requires the member states to ensure best interests of a child in any case involving take back, transfer or asylum application of a separated child. Although the convention does not outright outline the children rights, Article 15 requires a member state to facilitate re-union of a child with the family if such an act is in the best interests of a child. Further Article 6 requires that where the applicant is a separated child, the member state should accept such application in the presence of family members provided it won’t deter the child’s best interest. However, research has indicated that most member countries do not consider the best interest of a child thereby worsening their vulnerability. With introduction of stringent immigration laws in the UK, the state continues to apply stringent measures hence negatively impacting the best interest of children. In Re M (Care Proceedings) (Judicial Review),13 Lord Munby held that care proceedings with intent of removal of a child from its mother were harsh and draconian as ECHR demanded more justification to such acts. Further, in R (on the application of G) v Nottingham City Council14 Lord Munby found removal of newborn from its mother without court order to be unlawful based on Article 8 since it amounted to interference with the family life. Instances in which the UK courts can interfere with protection of children’s rights Even though Article 8 requires non-interference with individual’s private rights, there are instances where non-interference of children rights principle is invoked. For instance, Glass v. The United Kingdom 15hospital staff administered medication to a severely disabled child against the mother’s will. The court held that even though the hospital staff acted for the best interest of the child, they breached Article 8 since their decision was not authorized by the court. Therefore, after the mother objection to the decision of hospital staff, the hospital should have obtained authorization to proceed with treatment. Again in X and Y v The Netherlands16 the father of a mentally ill girl argued that it was difficult for him to institute legal proceeding against a man who had sexually molested her daughter. The court disagreed with him by arguing that an individual should have a proper means to vindicate the rights to privacy. The court further asserted that irrespective of Article 8 provision, the state had to act affirmatively in such a case. The strengths and weaknesses of the approach adopted by the UK The UK introduced stringent immigration laws to check influx of unlawful immigrants. However, the country continues to abide by international conventions that seek to enhance the welfare of children though with utmost care. This has helped in controlling the number of illegal children immigrants who enter the UK. Similarly, adoption of international convention ensures that justice is delivered to children who are born by illegal immigrants’ parents. In cases where the authorities fail to provide proper parental responsibilities, the UK laws provide their parents with the right to bring proceedings against the authorities. For instance in In Re W (Children) CA17, Lord Thorpe held that there are circumstances under which an injunction can be granted to stop removal of children from their parents. However, remedies are also available under British Human Rights Acts even though they should be justified under the convention. The convention considers remedying the violation to be sufficient. For instance, in P v South Gloucestershire Council,18 the court held that awarding declaratory relief for contravening Article 8 did not guarantee remedy for damages. However, in Anufrijeva v Southwark LBC19, the court held that the claimant should sufficiently demonstrate pecuniary loss. Recommendations for protecting children with disputed cases In reference to R (A) v Croydon and R(M) v Lambeth UKSC, the case concerns determination of the appropriate person to determine if an individual is a child or an adult to help the court in providing the necessities according to Children Act 1989. The Children’s Act 1989 section 105(1), a child is any person under the age of eighteen years. Section 20(1) of the British immigration laws require the local authorities to provide accommodation to any minor in need. Even though age determination issue do not present as an important issue, it is significant mostly in the face of present rise in numbers of immigrants. Section 20(1) requires the local authorities to provide both maintenance and accommodation to such individuals. In addition, a person under eighteen years seeking asylum is entitled to discretionary leave to reside in UK even if the asylum is rejected. Conclusion In evaluating children’s rights as enshrined in Human Rights Act, it is evident that the court’s approaches have been so reductive. However, there have been notable developments in respect of provisions of Article 8 of the European Convention of Human Rights and UK’s immigration laws. All the same, the provisions of ECHR are sometimes overlooked. Initially, the provisions of ECHR including Article 8 were not keenly taken into consideration, but presently, many judicial systems have expanded the parameters of rights protection particularly in matters of family law and children protection. Bibliography Cases Anufrijeva v Southwark LBC [2004] 1 ALL ER 833 X and Y v The Netherlands (Application No. 8978/80, Judgment of 26 March 1985), ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 (1 February 2011) B (Aminor) (Respondent) [2001] UKHL 70 Johansen v Norway [1996] 23 EHRR 33 M (Care Proceedings) (Judicial Review) [2003] 2 FLR 571 O (Contact; Imposition of Conditions) [1995] CA 1 FLR 124 Bingham MR P v South Gloucestershire Council [2007] EWCA Civ 2, [2007] Fam Law 393 Payne v Payne (2001] EWCA Civ 166, [2001] 1 FLR R (on the application of G) v Nottingham City Council [2008] EWHC 400 (Admin) W (Children) CA [2005] 2 FLR 1022 Yosef v Netherlands [2003] 1FLR 210 Journals Moreham N, ‘The right to respect for private life in the European Convention on Human Rights: a re-examination’ European Human Rights Law Review, 1, (2008), 44-79. O’Beirne B, ‘The European Court of Human Rights recent expansion of the right of privacy: a positive development?’ Coventry Law Journal, 14.2 (2009), 14-22. Rogers N, ‘Immigration and the European Convention on Human Rights: are new principles emerging?’ European Human Rights Law Review, 1 (2003), 53-64. Thym D, ‘Respect for private and family life under article 8 ECHR in immigration cases: a human right to regularize illegal stay?’ International & Comparative Law Quarterly 57.1(2008), 87-112. Book Van Bueren G, The international law on the rights of the child: Kluwer Law International (The Hague: The Netherlands 1998). Read More