Article 8 of the European Convention on Human Rights

Section 6 Human Rights Act 1998 provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right.

Article 8 – Right to respect for private and family life – provides:

  1. Everyone has the right to respect for his private and family life, his home and his correspondence.
  2. 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.

Whereas it is correct that art 8 provides no right to be provided with housing or to general welfare benefits, it does bite where the failure to provide support is particularly severe. The case law makes clear however that it is a high threshold, and suggests that the individual’s predicament must be sufficiently severe to engage art 3: Anufrijeva v Southwark [2004] Q.B. 1124.

However, as the Court expressly acknowledged in Anufrijeva, the courts will be more ready to find engagement of art 8 where a family unit is involved and the provision of support is necessary to support the welfare of children which may be necessary to enable family life to continue:

“… article 8 is capable of imposing on a state a positive obligation to provide support. We find it hard to conceive, however, of a situation in which the predicament of an individual will be such that article 8 requires him to be provided with welfare support, where his predicament is not sufficiently severe to engage article 3. Article 8 may more readily be engaged where a family unit is involved. Where the welfare of children is at stake, article 8 may require the provision of welfare support in a manner which enables family life to continue.”

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