Recommendation 46

If the Government legislates to restrict the application of Article 8 rights even further than the current regime, clause 8 will make it extremely difficult for an individual to successfully challenge deportation laws in the domestic courts based on incompatibility with Article 8. This is because the threshold for finding that a deportation provision is incompatible is extraordinarily high, requiring that the provision would result in “manifest” and “extreme” harm to a limited category of persons. Although states are given a wide margin of appreciation in relation to deportation laws and the balance between the public interest and individual rights to private and family life, the extreme restrictions placed on the courts by clause 8 would almost extinguish Article 8 rights entirely.