Backlash against the European Convention on Human Rights (ECHR) and the Human Rights Act 1998 (HRA) is heavily driven by immigration and is often a direct reaction to it. This is not a new phenomenon, but the politics are escalating, both domestically and internationally. On the international plane nine states issued a joint letter earlier this year challenging the European Court of Human Rights (ECtHR) migration jurisprudence and it is reported that further discussions about potential reform of the ECHR are ongoing. On the domestic plane, both the Conservative Party and Reform have announced that if they win the next election they intend to tackle immigration by withdrawing from the ECHR. Against this political backdrop, the Labour Government has announced its proposals. In Restoring Order and Control: A statement on the government’s asylum and returns policy it proposes to reform the asylum system; limit the right to respect for private and family life in Article 8 ECHR in domestic law; reexamine the interpretation of ‘inhuman or degrading treatment’ for the purposes of Article 3 ECHR as part of international initiatives; and bring forward legislation on modern slavery. There is, and will be in the coming months, much to discuss, but what is clear is that change is afoot. 

In the midst of this political maelstrom, it is imperative that debate and analysis is premised on a clear understanding of the legal issues. In an excellent report for the Bonavero Institute, Victoria Adelmant, Alice Donald and Basak Çali highlighted the problematic ways in which immigration law and human rights are presented in media coverage. Alan Greene has also recently suggested that the way in which politicians discuss human rights is a form of ‘kayfabe’, a staged performance which ‘allows politicians to ground reality in a fictional story of their own creation rather than objective truth’. He points to various statements by politicians about immigration as exemplary of this but concludes that ‘when stepping from the kayfabe to the real world, these arguments must come into contact with reality’ and that ‘it is here where the technocratic defences of human rights come into their own.’ This blog post might therefore be seen as part of that technocratic examination, or to quote Greene again, to be ‘bringing facts to a vibes fight’.  

The Government’s proposals have grave implications for many aspects of immigration law, and I will explore some of these issues elsewhere; some insights into the constitutional implications can also be found in Mark Elliott’s blogpost. In the space accorded for this blog post I will focus on Article 8 ECHR. In particular, the Government’s proposal to limit the right by: (i) strengthening the public interest test; and (ii) defining ‘family’ for the purposes of Article 8 ECHR. I will argue (i) that domestic law already defines the public interest test, and it is difficult to see how this can be strengthened in ways that are compatible with the Convention; and (ii) that the Government’s definition of ‘family’ is neither necessary, nor will it inevitably lead to the desired result. In respect of Article 3 ECHR, readers would be well advised to read Natasa Mavronicola’s earlier analysis on the prospect of losing this right. 

Strengthening the public interest test

The Government’s first proposal is to bring forth legislation setting out ‘to Home Office decision makers, and the courts, how to properly balance the public interest against’ Article 8 ECHR. One might legitimately ask, however, whether this is not already provided for in domestic law. Since 2012, Immigration Rules have set out how Article 8 ECHR should be balanced and these provisions were inserted into the Nationality Immigration and Asylum Act 2002 (NIIA) by s.19 of the Immigration Act 2014. There is therefore already domestic law which establishes how Article 8 ECHR is to be balanced against the public interest. In particular, s.117A NIAA provides that a court or tribunal must have regard to s.117B NIAA in all cases, which states, amongst other things, that the maintenance of effective immigration controls is in the public interest. Section 117A also provides that a court or tribunal must have regard to s.117C NIAA in cases concerning the deportation of foreign criminals. Section 117C NIAA states that deportation of foreign criminals is in the public interest unless one of three exceptions applies. Those exceptions require, in respect of sentences of less than four years, that there are either ‘very significant obstacles to integration’ or that the effect of deportation on a partner or child would be ‘unduly harsh’. Moreover, in cases where someone has been sentenced to a period of imprisonment of at least four years, only ‘very compelling circumstances over and above’ those other two exceptions will suffice. The severity of these thresholds has been addressed in the case law. See, for example, the observation in SSHD v Treebhawon and Others, at [37], that very significant obstacles to integration ‘is a self-evidently elevated threshold, such that mere hardship, mere difficulty, mere hurdles and mere upheaval or inconvenience, even where multiplied, will generally be insufficient in this context’. As well as the Supreme Court’s confirmation in HA (Iraq), at [41-45], that 

‘unduly harsh’ does not equate with uncomfortable, inconvenient, undesirable or merely difficult. Rather, it poses a considerably more elevated threshold. ‘Harsh’ in this context, denotes something severe, or bleak. It is the antithesis of pleasant or comfortable. Furthermore, the addition of the adverb ‘unduly’ raises an already elevated standard still higher.

These provisions (albeit in the form of Immigration Rules at the time) were accepted by the ECtHR in Unuane v United Kingdom as not in themselves incompatible with Article 8 ECHR on the basis that they do not preclude the domestic courts and tribunals from employing the criteria set out in the Convention case law for assessing whether an expulsion is necessary and proportionate. Importantly, however, in Unuane the ECtHR stated (at [79]), that

where the domestic courts do not carefully examine the facts, apply the relevant human rights standards consistently with the Convention and the Court’s case-law, and adequately balance the interests of the applicant against those of the general public, the Court remains empowered to give the final ruling on whether an expulsion measure is reconcilable with Article 8. 

Consequently, it will be necessary to see whether the Government’s proposal for a ‘fundamental reset’ which ‘narrows the circumstances in which an individual’s Article 8 rights would outweigh the public interest in removing them’ is consistent with the human rights standards established in the ECtHR’s case law.  

In contemplating what the Government’s proposals might look like it is helpful to recall that the Labour Government is not the first to suggest curtailing Article 8 ECHR. Indeed, this was a core part of the former Conservative Government’s proposals for repealing the HRA and replacing it with a Bill of Rights. Some insight into the issues that the Labour Government might now face may thus be found in responses to the former Conservative Government’s proposals. In 2021-2022 in my role as Director of the Centre for Public Law at the University of Cambridge, I and twenty-nine other members of our centre produced an extensive response to that consultation in which we observed, amongst other things, that it was unlikely that the proposals could require the courts to do anything other than what they were doing under the existing legal framework. We suggested that anything more restrictive was likely to lead to the ECtHR finding violations of Article 8 ECHR. 

Defining family

The Government is also proposing to bring forth primary legislation stating that ‘[f]amily, for the purposes of Article 8, should not normally go beyond immediate family members; unless, for example, other family members are acting in a parental capacity or there is a different, exceptionally close link’. Some insight into what is driving this proposal might be found in Lord Wolfson’s legal advice for the leader of the Conservative Party, which was published by the Conservative Party as the Wolfson Report in September 2025. The advice in that report is structured around a series of tests promulgated by Kemi Badenoch in June 2025 as the means of deciding whether the UK should remain a signatory to the ECHR. The choice of tests, the framing of those tests, and the interpretation of the outcomes of those tests is, of course, political. 

One of the five tests presented and used in the Wolfson Report is the ‘sovereign borders test’. In respect of which the Report states at [16-17] that the UK could, free from the purported constraints of the ECHR, ‘adopt more robust policies in this area and still maintain compliance with other international instruments to which the UK is signatory, principally the Refugee Convention and the Convention Against Torture’ (emphasis added). The report cites Australia in support of this contention. Stevie Martin, Stephanie Palmer and I have written in our forthcoming editorial for the December 2025 issue of the European Human Rights Law Review that any suggestion that Australia’s immigration laws, policies and/or practices comply with international rights instruments including the Convention Against Torture is plainly incorrect. Consequently, it is troubling from a rule of law perspective to read statements such as the following, at [73], that: ‘where there is no body capable of providing a definitive conclusion on the interpretation of an instrument, the UK will be in a better position to argue that its actions and policies are compatible with the instrument in question, provided it has bona fide opinion as to the meaning of the instrument’. Particularly when observing that the Report immediately goes on to state that ‘[t]his in part explains how the Australian Government maintains that its border policy is compliant with international law: while it is signed up to the Refugee Convention, it is not a member of the ECHR. As a result, its position cannot be authoritatively second-guessed in any competent international court’ (emphasis added). These repeated references to ‘maintaining compliance’ as opposed to ‘being compliant’, as well as avoiding legal scrutiny, run the risk of venturing into the world of Humpty Dumpty- enabling states to maintain that words (laws) mean just what they say they mean. This was arguably the underlying ethos of the Safety of Rwanda (Asylum and Immigration) Act 2024. 

Returning, however, to the question of family life, the Wolfson Report states (at [45]) that ‘courts have given an extremely broad interpretation to the scope of the concept of “family life” to include relationships between siblings (including adult siblings); aunts or uncles and nephews or nieces; and grandparents and grandchildren.’ Yet any suggestion that the ECtHR accords a broad interpretation to family life in the immigration context is untenable. This is evident if one looks at the ECtHR’s case law and compares it with the three cases cited in the Wolfson report, namely Boughanemi v France; Boyle v United Kingdom; and Marckx v Belgium. None  are recent cases and two of the three cases are not even immigration cases (Boyle was a child custody case, while Marckx was about state recognition of the relationship between a mother and her child). It is true that Boughanemi concerned deportation but the ECtHR has clarified in subsequent case law that adult children only have ties with their parents where there is the requisite level of dependency. In fact the ECtHR’s threshold for establishing family life beyond the core or nuclear family (spouses and children that have not yet come of age) is very high and is centred around the concept of dependency (a concept that does not feature in the Wolfson report). 

This concept can, however, be seen in Kumari v. the Netherlands and Martinez Alvarado v. the Netherlands. Those judgments were handed down some nine months prior to the Wolfson report, but they were by no means the first occasion on which the Court has stated that: ‘there can be no family life between parents and their adult children or adult siblings unless they could demonstrate “additional elements of dependence, involving more than normal emotional ties”’. Moreover, the severity of the threshold for dependency was already evident in cases such as Savran v Denmark, where an applicant who was receiving treatment for paranoid schizophrenia could not rely upon his close ties with his mother and siblings in order to establish family life. It can also be seen in Senchishak v Finland, where family ties could not be established between an elderly mother who had suffered a stroke and her daughter who was her only surviving relative. 

As for the interpretation given by our domestic courts, the single case cited by the Wolfson Report (at [45] fn.75) in support of the claim that a broad approach to family life operates is IA v SSHD, a case which concerned a family from Gaza that sought reunification with a family member in the UK. This case received considerable political attention after it was embroiled in a back-and-forth in Parliament between Kemi Badenoch and the Prime Minister. The application in IA was rejected by the Home Office, following which the First Tier Tribunal found that, although there was family life, this could not outweigh the weight to be attached to the public interest. This was subsequently overturned by the Upper Tribunal, which found flaws in the way in which the judge assessed the significance to be accorded to family life when carrying out the balancing exercise. Given Kemi Badenoch’s views on IA it is not surprising that it made its way into the Wolfson Report. What is surprising, however, is that the Wolfson Report did not mention that permission to appeal was granted by the Court of Appeal in May 2025, precisely in order to enable the court to consider whether family life could extend beyond the core family. The appeal was heard in the Court of Appeal in November and a judgment is pending. 

This is the political backdrop to the Government’s proposal, and it will be interesting to see how it develops in the coming months. In particular, we will need to look closely at precisely how the Government intends to define family life. When the Home Secretary made her statement in Parliament announcing the policy she stated that the Government will define ‘what, exactly, a family is – narrowing it down to parents and their children’. This, however, is a narrower approach to family life than that stated in the policy document which provides that family life ‘should not normally go beyond immediate family members; unless, for example, other family members are acting in a parental capacity or there is a different, exceptionally close link’. If family life is strictly limited to parents and children, as the Home Secretary suggests, then this would be in conflict with Article 8 ECHR. If, however, the Government proceeds with the model set out in its policy document then this could align with what the ECtHR currently provides (namely, additional elements of dependence, involving more than normal emotional ties) in which case there is arguably no change at all other than putting this interpretation on a legislative footing. Alternatively, the Government’s notion of an ‘exceptionally close link’ could bring into play different values from ‘dependency’. I have written in my chapter on immigration in a book that I recently co-authored with Stevie Martin and Stephanie Palmer that the ECtHR’s approach suggests that family ties are ‘only established where there is extensive physical and financial dependency. Indicating that the ECtHR approaches dependency as if something akin to an infantile relationship within a stable family set-up is required.’ Dependency for the ECtHR thus suggests a hierarchical relationship based on vulnerability and need, whereas the Government’s concept of ‘exceptionally close link’ may place the emphasis on strong emotional ties without the need for dependency. In this respect the Government’s proposed definition could in fact encompass a different, and potentially broader category of persons than those recognised by the ECtHR. This is clearly not what is intended.  

We thus await further details in respect of these proposals, draft legislation and a section 19 HRA statement in respect of such legislation. These proposals will be subject to immense scrutiny, and clarity will be demanded as to precisely how the proposed changes are going to operate in ways that ensure that domestic law remains, as this Government intends, compatible with the ECHR. 

An earlier version of this paper was presented at the ECHR and Venice Commission: Guarding Human Rights and the Rule of Law, and Facilitating Constitutional Resilience event hosted at BIICIL on 6-7 November 2025 in conjunction with CELI and the University of Leicester. I am grateful to both the organisers (Dr. Julinda Beqiraj, Prof. Katja Ziegler, Dr Ed Bates and Dr. Amal Sethi) as well as the participants for their engagement with my paper. I am also grateful to Prof. Katja Ziegler for her comments on an earlier version of this blogpost. 

Dr Kirsty Hughes, University of Cambridge.

(Suggested citation: K. Hughes, ‘Immigration and proposals to amend Article 8 ECHR’, U.K. Const. L. Blog (19th November 2025) (available at https://ukconstitutionallaw.org/))