Take tougher line on asylum human rights, judges told

Ministers in both the Home Office and Ministry of Justice (MoJ) will set out tighter guidance on how judges should use Article 8, which protects the right to private and family life, amid concerns it has been misused.

British judges will be issued with a clarification on how to interpret the article more narrowly, tightening up the criteria by which they can approve asylum applications. As part of the update, the Home Office is expected to “legislate the guidance”, two government sources confirmed.

The justice secretary Shabana Mahmood is thought to have started talks with the Lady Chief Justice to prepare for the changes, after a one-month review ordered by the prime minister in March.

Other parts of the ECHR, including narrowing guidance for Article 3, the right to be free from torture or degrading treatment, remain under consideration for now.

One of the cases singled out as most egregious was a judge’s decision to allow an Albanian criminal to stay in the UK after lawyers argued that his 10-year-old son disliked the “type of chicken nuggets that are available abroad”.

In a meeting this year, Keir Starmer privately railed against the “chicken nugget debacle”, using it to highlight the need to change the way Article 8 is applied, according to one minister present at the time. Two other sources acknowledged this had become a totemic case within government.

Several sources told The Observer that the main focus was domestic handling of cases, with British judges “interpreting Article 8 more broadly than it would be in the European Court”, one government source said.

Last week the backbench Labour MP Graham Stringer called for the government to withdraw from the ECHR and David Blunkett, a former home secretary, suggested temporary suspension from certain articles.

While some within Labour, including key No 10 figures, favour a more robust approach along these lines, there are concerns about the impact such moves would have on the Good Friday Agreement in Northern Ireland.

One source said: “This is something that Shabana and Yvette [Cooper] are very concerned about. We want to be able to deport foreign national criminals and this overinterpretation is holding us back. They are of the view that it starts –and possibly ends – with ‘How do you mend judicial guidance on Article 8?’”

A government spokesperson said: “We keep all elements of the Human Rights Act under constant review and we are clear it should be for parliament and the government to decide who has the right to remain in our country.

“We’re currently examining Article 8 of the European Convention on Human Rights to give our courts the clarity they need so our immigration rules are respected.”

Photograph by Lauren Hurley / No 10 Downing Street