Human Rights under the ECHR
Public bodies such as the Home office (UK Visa & Immigration) are prevented in law under Human Rights Act 1998 from acting in a way which breaches your rights under European Convention on Human Rights (ECHR).
The ECHR provides protection to every person within the United Kingdom, not just British and European nationals; for example, those under the control of the immigration authorities in the UK.
How might you be eligible for leave to remain on human rights grounds?
If a decision requires you to leave the United Kingdom and it can be shown that this would breach your human rights, you may be eligible to apply for leave to remain on that basis.
Some of the most common human rights provisions triggered under the ECHR in the context of immigration are:
- Article 3: the absolute prohibition against torture, cruel, inhuman or degrading treatment or punishment;
- Article 8: right to respect for private and family life.
Appealing Human Rights Decision
You can appeal an eligible immigration decision to the Asylum & Immigration Tribunal on the basis that your human rights have been breached.
Article 3 is an “absolute right”. This means that if it can be shown there would be a real risk of a breach of this right the government will not be permitted under any circumstances to require you to leave the UK.
Common examples include a fear of torture or imprisonment by a government or non-government agents. Being unable to access medical care in the case of a serious medical condition could mean that the UK government is required to grant you leave to remain.
Article 8 encapsulates the right to private and family life. This is often referred to as a “qualified right”; meaning any interference must be “proportionate”.
Family life cases can often involve the above and if you and your partner and/or child(ren) are in the UK, their interests will also play a large factor in the equation. Especially, if any decision means that you would be separated from your family.
Private life cases involve an intricate weighing up between the rights of the state and your rights as an individual. Often this comes down to a balance between the right of the government to protect the economic well-being of the UK and control immigration. A common example may arise where you have lived in the UK for a considerable time, during which time you put down strong roots.
Children impacted by any immigration decision must have their rights and best interests considered by the Home Office when it undertakes immigration functions.
Human Rights under the Immigration Rules
Protection of your right to family life and leave to remain may arise as:
- Under a parental relationship, if the child(ren) is under the age of 18, is in the UK, or has lived in the UK for the past 7 years, and it would not be reasonable to expect the child(ren) to leave the UK; or
- You are in a genuine relationship with a partner and they are lawfully settled in the UK and insurmountable obstacles (i.e. very significant difficulties) exist to your family life continuing outside the UK.
Human rights applications based on private life in the UK
The Immigration Rules provide for leave to remain under your Article 8 right to private life provided:
- You have lived in the UK for a continuous period of period 20 years; or
- You have lived in the UK for less than 20 years but there would be very significant obstacles to your integration into the country to which you would have to go if required to leave the UK; or
- You are under the age of 18 and have lived continuously in the UK for at least 7 years and it would not be reasonable to expect you to leave the UK; or
- You are aged over 18 and under 25 and have spent at least half of your life living continuously in the UK.
Human rights applications outside the Immigration Rules
Where you do not meet the requirements of the Immigration Rules, you may be able to apply for leave to remain on the basis of that compelling factors exist which mean the decision to remove you would amount to a disproportionate interference to your right to family or private life based upon Article 8 ECHR grounds outside of the Immigration Rules.
How we can help
We have very extensive experience in making high quality applications which put your case forward in the best possible light.
Our experience extends to successfully raising Human Rights in appeals against negative decisions from the Home Office.
We are experts and will be there to help you navigate complex Home Office rules, policies and associated case-law whilst seeking to remain in the UK on human rights grounds.
Always approachable and proactive; we pride ourselves on always seeking to meet the needs of our clients and are committed to providing you with sincere, clear, and reliable immigration advice.