Human Rights Application and UK Immigration – Article 8 Explained
Human Rights Application can save someone’s family life, career. Many applicants who have had their visa or Indefinite Leave to Remain applications refused must make a human rights application if they are covered by Human Rights. These can be extremely complex and require the advice and representation of an experienced immigration lawyer.
Unfortunately, UK Visas and Immigration (UKVI) usually interpret human rights application in a narrow manner. This is because they are empowered to reject applications for entry clearance or leave to remain on the flimsiest grounds. Human rights applications must be carefully prepared, with ample supporting documentation. In most cases, this requires an experienced human rights lawyer.
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Human Rights Applications and Immigration Law
UKVI, which is part of the Home Office, is a government department. This means they must, by law, ensure that decisions they make comply with the UK’s duties and responsibilities under the European Convention on Human Rights. Failure to do this can result in an immigration decision being overturned or sent back to UKVI for reconsideration.
A fundamental principle of the English legal system is ‘separation of powers’. This means Parliament (the legislature), the Executive (the government) and the Judiciary are independent of each other. Therefore, if you believe UKVI (part of the Executive branch) has made a decision which breaches your human rights, you can apply to the court (the Judiciary arm) to appeal the decision or have it reviewed (a process known as Judicial Review).
Eligibility and Human Rights Applications
Since 2015, having a human rights claim is the only avenue open to appeal for those who have had their Points-Based-System (PBS) visa application refused. In addition, human rights applications are often made by those who have overstayed in the UK or have come into the country illegally and have created a substantial private and/or family life in Britain.
In most cases, these claims are made under Article 8 of the European Convention on Human Rights.
Article 8 – Right to respect for private and family life
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.
Article 8 was brought into UK law under section 6 of the Human Rights Act. Alongside its related international provisions, Article 8 reflects the desire of the international community to create stronger international law protections for individual rights, after the experience of gross abuses of human rights during the 1930s and through to and beyond the end of the Second World War.
Unlike Article 3 (freedom for torture and persecution), Article 8 is not an absolute right. Art.8(2) states that the signatory nation’s government has the discretion to balance a person’s right to family and private life with its rights to control immigration.
To establish the right to appeal on human rights grounds, you need to show that UKVI’s decision on your immigration matter breaches your right to privacy and/or family life in the UK.
The following applications are examples of where leave to stay or extend your right to stay in the UK, can be made under Article 8 and the right to private life.
- If you have lived in the UK for 20 years or more, either lawfully or unlawfully, you can apply for permission to stay in the UK for 30 months under paragraph 276ADE of the Immigration Rules.
- If you are a child, who has lived in the UK for seven years continuously as long as you are 18 years or under.
- If you are aged between 18 and 25 years and have spent at least half your life continuously living in the UK.
- In very exceptional circumstances, if you are over 18 years and have lived continuously in the UK for less than 20 years but can prove there would be very significant obstacles regarding being able to settle and integrate into your country of origin.
Those who are the partner of a person settled in the UK can apply for leave to remain or extension of leave on the grounds of family life if they can show the continuation of family life would face insurmountable obstacles if they were required to leave the country. Again, this application will only succeed if there are exceptional circumstances.
To make a successful human rights application, the expert legal advice is important. Our top immigration lawyers in London can provide you with the best advice and give your application a strong chance of success. We have brought many successful results for our clients.
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A Y & J Solicitors are specialists in immigration law based in central London. If you would like to have more information, please contact us at [email protected] or call +44 20 7404 7933.
Disclaimer: No material/information provided on this website should be construed as legal advice. Readers should seek an appropriate professional advice for their immigration matters.
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