The European Convention on Human Rights has defined, and deals with, a number of basic rights that are guaranteed to every individual - irrespective of their race, religion, nationality or membership of a particular social group - who resides within the boundaries of the countries belonging to the Council of Europe (There are 46 member countries including the 26 member states of the  European Union).

The ECHR provides a list of fundamental human rights and each of them is enshrined in separate Articles in section 1 of the ECHR, whilst the other sections deal with the establishment of the European Court of Human Rights and other miscellaneous provisions.

Article 8 deals with the right to private and family life of every person living within the borders of the Council of Europe countries, and is relevant in relation to Immigration decisions taken by the public authorities of the member states.

A.     What is Article 8 of the European Convention on Human Rights?

1.     Every one 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 wellbeing 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

B.     Who can claim a right to live / remain in a member state on the basis of the establishment of a right to private & family life?

Any person, who has established his private and family life successfully in the UK and can provide evidence to that effect, can claim the right to remain in the UK on that basis alone no matter whether he qualifies under the domestic law to remain in the UK or not. Such a person could be:

o    An overstayer

o    An illegal entrant

o    An asylum-seeker

o    A failed asylum-seeker

o    Anyone having no claim under the Immigration rules or EEA regulations to live and remain here in the UK.

                Criteria for assessing a valid claim under Article 8

A family life can be established in the following relationships:

Close family relations

§  Husband / wife or Civil Partnerships

§  Unmarried and Same sex Partners (there is no requirement for them to have at least 2 years of relationship, unlike  under the immigration rules).

§  Parent / Child / Adopted Child

Wider Family relations

§  Grandparents/ Grandchildren

§  Uncles / Aunts

§  Nephews / Nieces

§  Adult Siblings

§  Parents / Adult Children

§  Foster Families

Establishment of family life is generally presumed among close relatives whilst in respect of  wider family relations, the relationships mentioned above MAY fall within the scope of family life depending upon the strength of the emotional ties and dependency, if there is any.

The UK Border Agency (UKBA) normally uses a five-step criteria in order to assess whether the applicant has established his private or family life in the UK and whether any efforts to remove him or her to his/her country of origin would amount to a breach of his/her human rights:

b.     Has the applicant established family or private life in the UK?

c.     Will refusal / removal interfere with that family life - are there insurmountable obstacles to the family enjoying family life elsewhere?

d.     If there is interference with family life, is it in accordance with the law?

e.     Is the interference in pursuit of one of the permissible aims set out under Article 8(2)?

f.      Is the interference proportionate to the permissible aim?

If the applicant can address the above-mentioned issues separately by providing directly or indirectly relevant documentary evidence in support that makes his case "truly exceptional", only then may he/she be granted leave to remain in the UK. In a case decided by the IAT, the tribunal has made its view  clear by stating that "where an individual falls outside the specific requirement or limits of the otherwise applicable rules or policy, that is a very clear indication that removal is proportionate. It is not for the judicial decision maker, except in the clear and truly exceptional case, to set aside the limitations set by the executive…".

This case therefore gives a clear guideline to  decision-makers and UKBA  to assess whether an individual can be removed despite the establishment of private and family life in the UK.

There are some factors that may be taken into account in assessing the "truly exceptional" circumstances of an individual. Some of them are:

o    Nature of relationship

o    Are there any minor children in the relationship?

o    Frequency of contact with relatives

o    Is there any dependency involved in the relationship?

o    Applicant`s and his family members` countries of nationality & immigration status.

o    Family members` ties with the UK

o    Applicant`s ties with his country of origin

o    Are there any health or other welfare issues involved?

o    Availability of entry clearance facilities in the country of origin

o    Has there been a delay in determining an earlier immigration application?

o    Would there be any effects on the family living in the UK of the removal of the applicant?

The list is not exhaustive and some other factors that may be considered as relevant in some cases can be totally irrelevant in other cases. The threshold is however very high and difficult to achieve unless there are genuinely "truly and exceptional" circumstances.

There may also be a case when the applicant can claim that on being removed to his country of origin, he might have to face circumstances that would breach his private and family life. The House of Lords has set an example of such cases in a starred case "Ullah & Do" where it was held that:

"In order to rely upon a foreign breach of ECHR articles other than Article 3, a claimant would have to show that he would risk suffering a "flagrant denial or gross violation" of such rights in the receiving state".

Again, the standard of proof is very high and it is only in rare cases that it can be proved that the refusal or removal of a person would invoke Article 8 of the ECHR.

Conclusion

On the face of it, Article 8 may appear to be another reason to stay in the UK on the basis of establishment of private and family life, but in fact it is only in "truly and exceptional" cases that applicants are permitted to remain in the UK.