Does the HRA or the ECHR prevent deportations in the UK ?

In March 2025, the Home Secretary announced a review of how Article 8 of the European Convention on Human Rights (the right to respect for private and family life) is being interpreted and applied by UK immigration judges. In June, the Lord Chancellor signaled plans to consider and discuss reform of the ECHR itself. The Home Secretary is reported to have ordered a review of how Article 3 (prohibition of torture and other severe ill-treatment) is being interpreted and applied in extradition cases. 

This explainer examines the relationship between the ECHR and immigration law. On the European Convention on Human Rights and how it applies to the UK, see our explainer. We have also examined the UK’s record before the European Court of Human Rights, which you can read here. On how the UK could leave the ECHR, see here. 

What does the ECHR say about national immigration law?

States are free to set their own immigration policies, and neither the European Convention on Human Rights (ECHR), nor the European Court of Human Rights when it applies the Convention, dictates what a state’s immigration policy should be.

The ECHR does not provide a right for people to enter or remain in a country of which they are not a national, or a right to claim asylum. The European Court of Human Rights has frequently said that it is for states to control the entry and residence of foreign nationals and that they have the power to deport foreign nationals convicted of criminal offences.

Very exceptionally, however, in individual cases, a person may be able to challenge their removal on human rights grounds, under Article 3 of the ECHR if, for example, there is a serious risk that they may be tortured in the country to which they would be sent, or under Article 8 if, for example, they have children who are entirely dependent on them.

How does Article 3 of the ECHR apply to decisions to remove someone from the UK?

Article 3 ECHR can apply to removal decisions in exceptional circumstances. Article 3 prohibits torture or inhuman or degrading treatment or punishment. This is an ‘absolute’ right, which means that a state cannot ‘derogate’ (i.e. suspend it in a time of emergency), or limit its application: for example, by saying that prisoners cannot claim the right, or that it is necessary to torture someone to gain information.

In the context of removal from a state, this means that governments cannot remove, or return, an individual to a where there is a high risk that they would face irreparable harm, including persecution, torture, ill-treatment or other serious human rights violations. This is known as the principle of non-refoulement, and is regarded as a core principle of international law.

How does Article 8 of the ECHR apply to decisions to remove someone from the UK?

Article 8 ECHR can apply to removal decisions in exceptional circumstances. Article 8 protects the right to respect for private and family life. Article 8 is a ‘qualified’ right, not an ‘absolute’ right. This means that the Convention allows states to take decisions or actions that negatively impact private or family life if these actions are justified.

Controlling immigration and deporting people who pose a threat to public safety are understood as legitimate reasons for interfering with this right. The interference will be permissible under human rights law as long as it is lawful, necessary in a democratic society and proportionate. Proportionality means that a fair balance must be struck between the rights of the individual and the wider public interest.

Where removal cases relating to Article 8 have reached the European Court of Human Rights, the Court has consistently held that national governments have a degree of discretion, known as the ‘margin of appreciation’, when deciding whether removal is justified. This means that the Court will generally defer to governments’ own evaluation when assessing whether a removal is in breach of Article 8, unless there are “strong reasons” for doing otherwise; for example, because the domestic court did not take into account the interests of any children involved.

How often does the European Court of Human Rights rule against the UK in removal cases?

The European Court of Human Rights has seldom ruled against the UK government in relation to the removal of people from the UK. Indeed, the Court rarely rules against the UK at all. It issued only one final judgment finding a violation of an ECHR right in a UK case in 2023 and one in 2024. Neither concerned immigration policy or deportation.

Since 1980, there have been 29 UK cases at the Court that have concerned either deportation (enforced removal of a foreign national) or extradition (removal of a person to another country for trial or to serve a sentence).

In 16 of these cases, the Court found that a planned deportation or extradition by the UK government would not breach the Convention and could go ahead. For example, in 2017, the Court held that the UK government’s decision to deport a Nigerian national who had lived in the UK since he was two years old did not violate the Convention: the individual’s long history of offending and the government’s legitimate interest of preventing disorder and crime outweighed the applicant’s Article 8 rights.

In the other 13 cases, the Court found that deportation or extradition by the UK government would violate the Convention and should not go ahead. This means that, on average, judgments of the European Court of Human Rights prevented removal of a foreign national only once every 4.5 years.

Four of these cases concerned the right to family life. For example, in its most recent finding of a violation relating to a UK deportation decision in 2020, the Court ruled that a Nigerian man who had been convicted of falsifying immigration documents could not be deported because it ran counter to the interests of his three young and financially-dependent children, all of whom were British citizens, and one of whom needed heart surgery. The other nine cases concerned deportation or extradition to countries where there was a substantial risk that the individual would be tortured or (in one case) that evidence obtained by torture would be used.

 Does the Human Rights Act stop the removal of foreign national offenders?

The Human Rights Act 1998 (HRA) does not prevent deportation except in exceptional circumstances. The HRA incorporates most of the rights and freedoms in the ECHR into UK law. It gives effect to the Convention rights as explained above.

Is removal of foreign national offenders left up to judges?

When deciding individual cases, judges must follow the rules set by Parliament. Parliament has legislated to strictly set out the circumstances in which foreign national offenders can successfully invoke Article 8. The Nationality, Immigration and Asylum Act 2002 (as amended by the Immigration Act 2014), together with the Immigration Rules, provide a complete code for the determination of Article 8 claims in deportation cases.

Under these provisions, the Home Office must issue deportation orders against any foreign national sentenced to imprisonment of 12 months or more (for example, for certain drugs, theft or criminal damage offences). The Home Office also has discretion to deport a foreign national (whether or not they have committed an offence) if they believe it ‘is conducive to the public good’.

The Immigration Rules provide for exceptions where “there are very compelling circumstances such that removal would be contrary to the Human Rights Act 1998” or where removal would breach Article 8 ECHR. The Article 8 ‘private life exception’ is met where:

(a) the foreign national has been lawfully resident in the UK for most of their life; and

(b) they are socially and culturally integrated in the UK; and

(c) there would be very significant obstacles to their integration into the country to which they are to be deported.

The Immigration Rules limit the possibility of preventing removal on a family life basis where the individual has committed a serious crime. If a foreign national has been sentenced to four years or more (which would include offences such as class A drugs trafficking and certain firearms offences), they “must show very compelling circumstances over and above” the private life exceptions described above for the deportation to be deemed to breach Article 8.

Does having a child mean that an individual cannot be removed from the UK?

Having a child does not automatically mean that an individual cannot be removed from the UK. Where the person has a child, and is claiming the Article 8 exception on the basis of their relationship with them, all of the following conditions must be met:

• the relationship is genuine and subsisting; and

• the child is either a British citizen or has lived in the UK continuously for at least the 7 years immediately before the date of the decision to make the deportation order; and

• the child is at the date of the decision to make the deportation order resident in the UK; and

• it would be unduly harsh for the child to live in the country to which the foreign national is to be deported; and

• it would be unduly harsh for the child to stay in the UK without the foreign national who is to be deported.

How often do UK courts and tribunals stop the removal of a person from the UK on human rights grounds? 

A small minority of removals are stopped on human rights grounds.

The Home Office does not currently publish regular data on the number or outcome of appeals against deportation on human rights grounds. The latest published data about human rights-based appeals against deportation runs to 2021.

Home Office data shows that 27,507 foreign national offenders were deported from April 2016 to June 2021. During the same period, 922 foreign national offenders successfully challenged their deportation on human rights grounds in the First Tier Tribunal. Including cases up to November 2021, it is estimated that 645 of these cases successfully challenged their deportation on Article 8 grounds. This means that the number of foreign national offenders who successfully challenged their deportation using Article 8 during that period was around 2.5% of the number who were deported.  

This may not be the final figure, however. Under the UK’s immigration tribunals system, the Home Office can appeal the decisions of the First Tier Tribunal. Cases are then reviewed by the Upper Tribunal. Where foreign national offenders successfully challenge their deportation on human rights grounds in the First Tier Tribunal, the Upper Tier Tribunal may find that this decision was wrong. Several cases about foreign national offenders that have been reported in recent months have been overturned by the Upper Tribunal in this way. For example, it was wrongly reported that an Albanian man successfully appealed against deportation because his son did not like foreign chicken nuggets; this argument was explicitly rejected and the decision was overturned by the Upper Tribunal.

By Dr Joelle Grogan, formerly Head of Research, UK in a Changing Europe, Dr Alice Donald, Associate Professor of Human Rights Law, Middlesex University, and Victoria Adelmant, DPhil student in Law at the University of Oxford and Director of the Digital Welfare State and Human Rights Project at New York University School of Law.