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Article 8 - Coggle Diagram

- - - - Decisions to expel a person from a country or refuse admittance into a country which will result in separation of spouses/partners/children may disrupt family unit and engage article 8 (although there is no right to reside in a particular country)
      - Adbulaziz, Cabales and Balkandali v UK- three women who lawfully settled in the UK, then married husbands from their countries of origin. Held article 8 does not expand to an obligation on the state to accept non-national spouses for settlement in that country
      - Quila v Secretary of State for Home Dept- a ban was introduced in the Immigration Rules on the grant of marriage visas where either party was was under 21 years old as it sought to prevent forced marriage. It did pursue a legitimate aim but was not ‘necessary in a democratic society’ as the interference was disproportionate- it effected more unforced marriages than forced marriages. It did not achieve the legitimate aim by way of the least intrusive means.
      - R (Johnson) v Secretary of State for Home Dept- his reason for deportation (being his birth was outside of wedlock) breached article 14 and 8
- - - - Soering v UK- a fair balance between the demands of the general interest and individual’s fundamental rights
      - Handyside v UK shows interferences will be necessary in democratic society if they answer a pressing social need and are proportionate to the legitimate aim pursued
- - - - Campbell v UK- prison authorities may only open a letter from a lawyer to prisoner when they have reasonable cause to believe it contains illicit enclosure that the normal means of detection would have failed to disclose. The letter can then be opened but not read. Suitable guarantees should be done in this case, such as opening infront of the prisoner. Reading only permitted in exceptional circumstances when they have reasonable cause to believe privilege is being abused
      - Key case: R (Daly) v Secretary of State for the Home Department- re a policy where prison cells could be searched in their absence. The right to privileged legal correspondence was even more fundamental as they have already lost basic rights. The infringement of the common law right to confidentiality of privileged legal correspondence was greater than necessary to serve legitimate objectives
- - - - Secretary of State for the Home Department v AP- the Supreme Court held that the imposition of a 16-hour curfew and the requirement that the appellant had to live 150 miles from his family was a violation of his right to family life
      - wider margin of appreciation
      - control orders under prevention of terrorism act 2005 have been found to engage article 8 protection
    - - Da Silva v Netherlands- the Brazilian applicant and her daughter, a minor with Dutch nationality, argued that there had been a violation of Article 8 arising from the refusal of the Netherlands to grant the applicant a residence permit. Her application for residency had been refused by the Dutch authorities, who argued that her interest in staying near her daughter was outweighed by the interests of the economic well-being of the country, as she worked illegally. The ECtHR disagreed and held that there had been a violation of Article 8. Although critical of the applicant's behaviour, the court considered that the balance should fall in favour of preserving the family ties
      - McDonald v UK
    - - linked cases- R v Chief Constable of South Yorkshire Police, ex parte LS and ex parte Marper, the court did not consider that Article 8 had been engaged by retaining DNA samples and fingerprints of suspects who had been cleared of charges. Even if the Article had been engaged, the measure was justified, given the effectiveness of preventing crime
      - in S and Marper v UK (later case), the applicants were successful because the blanket and indiscriminate nature of the DNA retention policy was seen to be disproportionate. It failed to take into account the (lack of) gravity of the offences suspected or the presumption of innocence that should be enjoyed by acquitted suspects
      - In R (H) v A City Council,LA disclosed to several organisations a previous conviction for indecent assault of a child, and a possible future conviction for a similar charge he was facing. The Court of Appeal held that the local authority had disproportionately interfered with the applicant's right to private life as they disclosing this information to all of his contacts when, crucially, the applicant did not work with children as part of his affiliation with these organisations
      - In R (T and others) v Chief Constable of Greater Manchester, two of the applicants challenged the 'enhanced criminal record certificate' scheme (ECRC) which was a blanket regime in which all previous cautions held on the police national computer were disclosed by an ECRC. The applicants had both received cautions for minor infractions, when they were children, which hampered their opportunities as young adults.
        This engaged Article 8 because this could adversely affect a person's ability to engage in aspects of their private life, including working and developing relations with others. The court found that the blanket nature was disproportionate to the identified legitimate aims
        
        The third applicant challenged the statutory scheme which prevented serious convictions from ever being regarded as 'spent.' The court held that this was not a blanket policy, as it discriminated between offences which were very serious and those which were not. Accordingly, the interference was a proportionate
      - The joined cases of R (Catt) and R (T) v Commissioner of Police of the Metropolis provide a useful review of the system operating under the Data Protection Act 1998 for retention of information for continuing 'policing purposes.' Mr Catt was a man in his nineties who had participated in numerous political demonstrations on an entirely peaceful basis but who was indirectly associated with an organisation, some of whose members had committed violent offences. Ms T was alleged to have made homophobic remarks to a neighbour and was subsequently sent a 'prevention of harassment' letter by the police. In both cases the Supreme Court ultimately found that the systems of data retention operating were essentially proportionate in seeking to fulfil the legitimate aim of crime prevention
    - - In Wainwright v UK, two applicants were subjected to strip and intimate body searches whilst visiting an inmate in prison. It's clear Article 8 was engaged. Whilst the searches were held to be in accordance with the law (namely the Prison Act 1952 and subsequent rules), and they pursued the legitimate aim of prevention of crime and protecting the health of the prisoners, the court was not satisfied that the searches were proportionate to the legitimate aim, due to the intimate and poorly regulated manner in which they were carried out
    - - In Copland v UK, the applicant had complained that monitoring of telephone calls, internet usage and emails by her (public) employer violated her Article 8 rights. The UK argued that any violation was justified on the basis of protecting 'the rights and freedom of others' by ensuring that facilities provided by publicly funded employers were not abused. The ECtHR concluded, however, that the interference did not have any basis in domestic law and so amounted to a breach
      - can involve media's freedom of expression