Why are the ECHR and Human Rights Act relevant to immigration?  I thought they were just supposed to protect citizens, not foreigners with no right to be here. 

The European Convention on Human Rights (ECHR) and the Human Rights Act apply to everyone, even asylum-seekers. However, they are not the first thing to which people turn to know where they stand. Just as fair trial rights existed for us in our common law before appearing in the Human Rights Act, so asylum policy is set by the UK government, with the Human Rights Act acting as a backstop check to make sure we have got it right. 

The UK, as a liberal democratic state with the rule of law, does not tolerate torture or inhuman treatment. Our criminal law protects us from such things and we can bring civil claims against anyone who harms us like that. We don’t deport people to places where they will be tortured either. It’s part of our values. The Human Rights Act reinforces those values but does not create them.

READ MORE: What has the European Convention on Human Rights ever done for us?

The same goes for British citizens wanting to be joined by their foreign national family members such as a spouse or children. It’s our Home Office that sets immigration policy and can reject applications using the strong, muscular, definition of the public interest that Parliament provides. The ECHR and the Human Rights Act make little difference and the numbers relying on them are small. The rare cases that succeed usually involve British family members that need care or looking after. Even then, a foreign national with a criminal record may be refused in the public interest. 

Doesn’t the ECHR/HRA mean that people wanting to come to the UK, or who have landed on small boats with dodgy asylum claims, or who are here illegally, can get round the immigration rules? 

No. There are tough rules in place that ensure that people who cross the Channel may be sent back to France to have their asylum claims determined there. The new UK-France Treaty on preventing dangerous journeys means that France has to take them back when the UK asks. Those asylum-seekers that remain here get their claims processed here because like all democratic states in Europe, we abide by the Refugee Convention. We don’t send people back to countries where they face persecution or torture. Like all European democracies we are signed up not only to the ECHR but to the big UN global treaties on this as well. 

Doesn’t the ECHR/HRA stop us deporting foreigners who have committed serious crimes because their child would miss chicken nuggets or because life is a bit tough back home?

No. The public interest dominates consideration of these issues by the Home Office and immigration judges. Where a UK-resident British citizen has a foreign national spouse or child and aspires to live with them in the UK there are demanding conditions, including a high-income threshold to be satisfied.  Presently, an income of £29,000 is required to apply to bring in a spouse. Family life human rights provide a backstop for the small, residual number of hard cases or unusual cases for which the rules – being general in nature – make no provision. 

There are also some cases concerning foreign nationals convicted of criminal offences who stand to be deported from the UK. Some of them seek to resist deportation as they have UK-resident family members, again typically, a British citizen spouse or child. It is these cases that tend to get media attention. In fact, Home Office policy and appeals law define the public interest at such a high level that almost all foreign national criminal claims fail. 

Parliament has said in law that the deportation of foreign criminals is in the public interest. It also states that the more serious the offence committed by a foreign criminal, the greater the public interest in the deportation of that person. Foreign nationals given prison sentences on conviction face very high hurdles.  Without a British citizen family member with care needs or who needs looking after,  for whom it would be unjustifiably harsh or who has very compelling circumstances, foreign national criminals have very little chance of success. A case that might succeed is where a sick British citizen child needs her foreign national parent to look after her.

The numbers who succeed in an immigration appeal are tiny. A 2025 Bonavero Institute report estimates that the number of deportation appeals won on family life human rights grounds is about 2.5% of those deported. In the 15 months to June 2021 only 45 deportation appeals were allowed by an immigration tribunal on human rights grounds. That is not very many. 

READ MORE: ‘Quitters never win – the problems with leaving the ECHR’

Great caution should be taken when reading media reports of a dislike of foreign chicken nuggets or an affection for a pet being the central issue in any cases. If such matters sound like a fantastical basis for deciding an immigration appeal, that is because in reality immigration appeals are not won on such grounds.  

Didn’t the ECHR/HRA stop the Tories’ Rwanda plans?  Could it stop Labour’s returns deal with France?

No. France is not Rwanda. Human Rights law stopped removal to Rwanda as there was a risk of the asylum seekers sent there being sent on to their home country where was a risk of ill-treatment or torture. The Labour government’s scheme to transfer asylum-seekers to France under the 2025 UK-France Agreement does not face the same hurdles. Like the UK, France applies ECHR human rights. It is also bound by EU asylum laws. Asylum-seekers in France can seek protection from French courts. 

Aren’t appeals to the Strasbourg Court a way in which lawyers representing clients with dodgy cases can frustrate and spin out the process?

 No. UK immigration cases barely feature there. UK domestic tribunals are where immigration cases end in all but a literal handful of cases. There is a right of petition to Strasbourg once domestic remedies have been exhausted. However, the chances of a successful outcome are miniscule. Only a small number of applications are made. Of those, the vast majority are filtered out at the admission stage, for example as being manifestly ill-founded. 

In the tiny number of cases that progress to a full hearing, the UK government mostly wins. Since 1980 there have been only 29 UK deportation cases decided by the Strasbourg Court, of which the UK won 16. The reality is that the Strasbourg Court’s judgments make little difference. 

If we left the ECHR and scrapped the HRA wouldn’t we be able to deport anyone we decided shouldn’t be here without pesky courts getting in the way?

No, it’s not that easy. There are other impediments such as the high cost of immigration detention and removal, the problems of documenting and securing the identity and nationality of persons, the role of our common law in fundamental rights protection, and the lack of effective re-admission co-operation by home states.

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In any event, as already mentioned, the UK is a liberal democratic state with the rule of law. We do not tolerate torture or inhuman treatment. Our criminal law protects us from such things and we can bring civil claims against anyone who harms us like that. We don’t deport people to places where they will be tortured either. It’s part of our values.  By Adrian Berry, X-Labourlist  - Adrian Berry KC is Co-convenor of the Immigration Group of the Society of Labour Lawyers.