6 May, 2015
The starting point of this paper is a recent decision of the European Court of Human Rights Muradeli v. Russia  ECHR 368. There is something mildly reassuring about finding out that in spite of the current view of Putin’s Russia as a by no means benign dictatorship in a not very convincing democratic disguise, the country remains a signatory of the European Convention on Human Rights (ECHR) and accepts the jurisdiction of the European Court of Human Rights.
2. The appellant Muradeli is a citizen of Georgia who first moved to Russia in 1992 and in 1994 married a Russian woman. They had a son in 1995. In 1996 the appellant and his family moved to Georgia but returned to Russia in 2001. He was issued with a residence permit valid for two years from July 2002. He delayed in applying for renewal of his permit but in August 2006 his permit was renewed on application for three years. He failed to notify changes of address and was notified that on expiry of his permit he would have to leave Russia. He continued to live in Russia without a permit beyond 2009. In October 2011 he was arrested in the course of a police identity check. He was charged and found guilty of a breach of immigration law. He was fined 3000 roubles and his administrative removal from Russia was ordered. He was removed in November 2011.
3. The appellant appealed on the basis that his removal from Russia was a breach of his right to family life under Article 8 of the ECHR. He said that his son was now sixteen and in need of his father’s support and guidance. His own removal from the family placed a heavy burden on his wife who had to raise their son on her own and pay back the bank loan on the flat she and her husband had bought together.
4. Appeals by the appellant first to the Regional Court in April 2012 and then by way of supervisory review to the Russian Supreme Court were dismissed. The appellant finally took his case to the European Court, which also dismissed the appeal.
5. Article 8 provides:
6. The judgment of the European Court summarises in detail the arguments advanced by the appellant’s lawyer and by the Russian Government and concludes that the decision to remove the appellant was reasonable and proportionate, having regard to his “consistent disregard of the laws, regulations and public order of the host country.” (Paragraph 81.) Paragraph 70 of the judgment is particularly illuminating:
Where immigration is concerned, Article 8 cannot be considered to impose on a State a general obligation to respect a married couple’s choice of country for their matrimonial residence or to authorise family reunification n its territory. Nevertheless, in a case which concerns family life as well as immigration, the extent of a State's obligations to admit to its territory relatives of persons residing there will vary according to the particular circumstance of the persons involved and the general interest. Factors to be taken into account in this context are the extent to which family life would effectively be ruptured, the extent of the ties in the  State, whether there are insurmountable obstacles in the way of the family living in the country of origin of the alien concerned and whether there are factors of immigration control (for example a history of breaches of immigration law) or considerations of public order weighing in favour of exclusion.
Since 2000 when the Human Rights Act 1998 came into force there has been increasing concern about the way that Article 8 has been interpreted in relation to immigration and asylum appeals. Much publicity has been given to cases in which convicted criminals and other undesirables were allowed to remain in the United Kingdom on the ground, sometimes supported by flimsy evidence, that deportation or removal would be a breach of the individuals’ rights to family life. As a result of these cases new Immigration Rules were promulgated in June 2012 to impose on immigration judges and others having to deal with Article 8 pleas detailed guidance. These were followed up by section 19 of the Immigration Act 2014 which came into force in July 2014 and inserted into the Nationality, Immigration and Asylum Act 2002 a new Part 5A setting out a code of public interest considerations to which regard must be had by judges who have to decide these cases. Part 5A is completely compatible with Article 8 but spells out in uncompromising language how it is to be interpreted. Thus the new section 117B of the 2002 Act says, “The maintenance of effective immigration controls is in the public interest” and section 117C says “The deportation of foreign criminals is in the public interest” and “The more serious the offence committed by a foreign criminal the greater is the public interest in deportation of the criminal”. Some commentators have criticised these provisions on the ground that Parliament has failed to respect the constitutional separation of powers between the judiciary and the legislature, and certainly it would be hard to find any other branch of the law where rules of interpretation are set out in such detail. However, Parliament is sovereign and the criticism is not valid and should be regarded merely as a protest. For more detail on the subject see Legal Paper MW 334.
7. The Human Rights Act made the ECHR directly justiciable in the UK courts and imposed on judges, especially immigration judges, the necessity to examine the actions of the Home Office or its agencies in dealing with visa applications and other decisions made pursuant to immigration legislation against the very general maxims set out in the ECHR. The ECHR Is a quasi -constitutional document and for judges it was a new responsibility to have to consider pleas that particular Home Office decisions which might otherwise conform with all the requirements of the relevant legislation could nevertheless be impugned on grounds arising from the applicability of one or other of the Articles of the ECHR.
8. The early experience of considering Article 8, particularly in asylum and immigration appeals and even more particularly in appeals against removal or deportation, was that little or no regard was had to Article 8.2. and many appeals under Article 8 were allowed which ought not to have been. In particular many convicted criminals were allowed to remain in the country instead of being deported on the basis of the right to family life. In some cases the impression arose from the way the appeals were disposed of that the rights of the criminal had priority over the rights of the victim. On reflection it is not difficult to see how this deplorable state of affairs arose. For the judges dealing with such cases it was a wholly new experience, its intellectual impact softened to only a limited extent by training courses in the months before the Human Rights Act came into force. It was a problem also and to a much greater degree for the Home Office Presenting Officers (HOPOs) who represent the Home Office at hearings of immigration and asylum appeals. HOPOs are not professional lawyers but are selected from immigration officers of some maturity and experience. Many are very capable people and like judges they also had their training courses before the Human Rights Act came into force. But clearly to argue that interference with the right to family life is justified by reference to the law, interests of national security or other reasons set out in Article 8.2 calls for a level of legal expertise which many lawyers would find daunting and imposes an unreasonable burden on lay advocates. A further material factor is that often the Home Office is short of HOPOs and many appeals have to be heard by immigration judges without any Home Office representative present. In such instances any case which ought to be made under Article 8.2 may go by default.
9. I have tried to explain why in the past so many cases under Article 8 have been decided in favour of the appellant which ought by rights to have been dismissed. The evident iniquity of the situation at times gave rise to feelings of outrage, expressed publicly by the Home Secretary. In order to put matters right we now have on the statute book detailed provisions telling judges how they are to interpret Article 8 and to understand inter alia that the maintenance of effective immigration control is in the public interest.
10. The decision of the European Court of Human Rights in Muradel is in marked contrast to the problems faced in the past in dealing with Article 8 cases under the Human Rights Act in the UK courts. The judges in the European Court are experts in the field of human rights as are the lawyers who appear before them. The case concerned an individual who had simply failed to comply with immigration laws and had been an illegal immigrant for some time, a far less serious matter than the crimes committed by many illegal immigrants and others in the United Kingdom who in the past have successfully pleaded the right to family life as a means of avoiding deportation or removal. In that case they readily recognised the right of the Russian State to interfere with the appellant’s right to a family life in spite of his being married and having a son of sixteen.
Harry Mitchell QC
Honorary Legal Adviser