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European Convention on Human Rights (ECHR) guarantees the citizen within the EU a right to respect for private and family life, and is typically appealed to in conjunction with disputes regarding unlawful searches. However, as Wicks, Rainey and Ovey (2014:334) illustrate, Article 8 is actually quite open-ended and may be applied in any number of ways -- even in the case of Y who is threatened with deportation to Nepal.
Article 8 states in two provisions that, first, "everyone has the right to respect for his private and family life, his home and his correspondence," and, second, "there shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others" (European Convention on Human Rights 2010).
Does the deportation of Y raise legal issues under Article 8? At first glance, it would appear that the UK Upper Tribunal could judge Y as a threat to public safety and health and morals, which would provide grounds for Article 8 not being applied. On the other hand, precedent has been set in which Article 8 has been shown to cover "positive obligations," meaning that the State has a duty to not interfere in family situations in such a way as to cause the separation of family members from one another. Positive obligation could be applied in the case of Y, whose entire family resides in UK. Deportation in his case, it could be argued, would violate his right to family life protection, seeing as how there are no familial relations or caretakers for him in Nepal. As it can be shown that his father provides shelter for him and that Y is still dependent on his immediate family, the case for positive obligation can be made.
In case law, Birmingham City Council v Clue (2010) EXCA Civ 460 29/4/2010 has established that the scope of Article 8 ECHR has been broadened to include within the context of the community care provision the protection of families undergoing immigration control inspection. In this case, decision was granted in favor of Ms Clue, who the Court of Appeal ruled had the right to receive essential support while waiting for a decision on the status of indefinite leave to remain application. The significance of this ruling is found in the fact that as an EU citizen, the right of protection superseded any imposition of national interests in so far as they impinged on Ms Clue's ability to ensure protection and support for her family. This ruling may serve as precedence for the case of Y, who also seeks to assert his "right to respect" under Article 8, regarding his familial situation and his inability to receive care should he be deported.
There is also the case of Von Hannover v Germany (2012). Hannover argued that her right to respect her private life as protected under Article 8 was being violated with the incessant publication of photos in tabloids. The Court found this argument to be admissible, stating that "The Court observes that this complaint is not manifestly ill-founded within the meaning of Article 35, section 3 (a) of the Convention." The Court, moreover, stated that rights protected under Article 8 superseded the autonomous laws of the sovereign State. In other words, the individual had more protection under EU law and as an EU citizen than he/she did as a citizen of Germany or a long-term immigrant in France. Even though in the case of Hannover, the applicant was deemed a public person by the Court and thus one whose private rights were not violated under Article 8, precedent was set for the admission of Article 8 in case law. The question did not concern whether Article 8 could be applied but rather the action of publishing photos of a public person constituted violation of Article 8, which protects the right to be respected in one's private life.
In this sense, the legal issues surrounding Y are based on the questions of not only which law takes precedence but also of what is the status of Y -- immigrant or "long-term" resident? These terms and meanings may seem insignificant, but as in the case of Hannover, it is precisely that meaning that hinges on these terms that the case is judged. Hannover's case was judged by using the definition of public as opposed to private. Y's case may be judged in a similar way: is he an EU citizen or an immigrant in the UK? If both, what does that mean? If both, how does Article 8 apply in terms of the positive obligation that the State has in enforcing Article 8 and the right to respect family life. Is Y to be considered more of a threat to UK security than he is an individual who is afforded the right to be respected regarding his unique familial situation? In short, does separation of Y from his family supersede the State's finding of Y to be a threat to public safety?
The fact that Y's family had been granted indefinite leave to remain in the UK since 2008 and that his uncle had lived in the UK for even longer, helps to support the argument favoring the protection of "autonomous human rights" for "long-term residents," as illustrated by Thym (2008). Thym points out that that European Court of Human Rights in Strasbourg has given guidance on how "private life" is to be interpreted and what autonomous rights are to be protected for immigrants. Article 8 essentially "widens the reach of human rights law to the legal conditions for leave to remain, effectively granting several applicants a human right to regularize their illegal stay" (Thym 2008:87). In this sense, the "leave to remain" immigrant becomes more like a citizen of the country in which he resides, in so far as rights are concerned: in other words, deportation becomes a problematic subject. Is the "leave to remain" immigrant's status protected by the EU more than it is by the country's autonomous laws? The question is not easily answered, though the legal issues surrounding Article 8 suggest that the dilemma has a two-fold nature. This is especially apparent in the case of Y.
Y is threatened with deportation namely because he has been convicted of manslaughter and is subject to automatic deportation being an immigrant. Had there been no conviction, deportation would not be an issue. However, following UK law, immigrants may be deported automatically following the serving of their prison sentence. Yet, EU law blurs the line between autonomous nation and Union -- which has authority in cases such as Y's? Y's human rights (which extend to his right to not be separated from the family that provides for him) appear to be protected under Article 8. Yet, Y's protection essentially impinges on the right of the State to protect itself against immigrants who are convicted of a violent crime. Were Y not an immigrant, he would not be deported. So the question becomes, what is an immigrant in the new EU? Can there really be any sense to the term in a Union committed to deconstructing immigration laws and standards of previous generations?
What makes Y an immigrant in this case? He is from Nepal and it is not a UK citizen -- but his family resides in the UK and has the right to do so under EU law. Thus, there is a legal dispute that can devolve into rhetorical fetish if not carefully approached with the intention to address the issue that is raised by the case, which, ultimately could be described as an issue of "autonomous interpretation." Autonomous interpretation could set a standard for separate State interpretations of law, as evidenced by the Constitutional Tribunal in "recent Polish constitutional law literature" (Stawecki 2012:505). Stawecki shows that "autonomous interpretation" is paradoxical in nature because though it is referenced in Polish law, it remains unpopular among legal theorists. It is rather a concept that is semiotic and rhetorical in nature, yet out of which can evolve a system of judgment that affects the basic rights of citizens in the EU and how those citizens are treated across borders in other countries within the same EU. The largest legal issue that surrounds Y's case is not simply the matter of separation from family in violation of his human rights, or the deportation of Y for the sake of State's rights, but rather the very definition of sovereignty within the EU. Such an issue is, of course, beyond the scope of the case involving Y, but implications may be drawn from it that may be applied elsewhere.
In conclusion, the case of Y may be decided in conjunction with…[continue]
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