Article 8 of ECHR: Right of Private & Family life
The European Convention on Human Rights (ECHR) 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 countries belonging to the Council of Europe.
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 broadly defines the right to private and family life of every person living within the borders of the Council of Europe countries and is relevant to all immigration decisions taken by the public authorities of the member states.
Please note that although the UK officially left the European Union on 31 December 2020, the country remains an active and permanent member of the Council of Europe.
The Council of Europe is an international organization that promotes cooperation between its members, states and European Union countries in the field of legal standards, human rights, democratic development, legality and cultural interaction. Founded in 1949, the Council of Europe is the oldest international organization in Europe. It consists of 47 states, in which more than 800 million people live.
On the basis of the above-provided, and since the UK remains an active and permanent member of the Council of Europe, all the provisions regarding Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms continue to apply and be used in the UK immigration law in full, as it used to be the case before the UK left the European Union.
A. Article 8 of the European Convention on Human Rights
- Everyone has the right to respect for his private and family life, his home and his correspondence.
- 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.
Article 8 is therefore a qualified right, i.e. interference can be justified and where it is justified there will be no violation of this right.
B. Who can claim a right to live 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 despite whether he qualifies under domestic law to remain in the UK. Such a person could be:
- An overstayer
- An illegal entrant
- An asylum-seeker
- A failed asylum-seeker
- Anyone having no claim under the Immigration Rules or EEA regulations to live and remain here in the UK.
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C. 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 can generally be presumed among close relatives where children are involved (although the relationship would still need to be evidenced) whilst in respect of wider family relations and relations between adults, the relationships mentioned above may fall within the scope of family life depending upon the strength of the emotional ties and dependency. In respect of a family unit where one family member faces removal the rights of all the affected family members as a whole must be taken into account.
The Home Office normally uses five-step criteria (based on the questions to be asked in Article 8 cases set out in the House of Lords case of Razgar) in order to assess whether any removal of an individual to his or her country of origin would amount to a breach of his or her Article 8 human rights:
- Has the applicant established family or private life in the UK?
- Will removal interfere with that family life with consequences serious enough to engage Article 8?
- If there is interference with family life, is it in accordance with the law?
- Is the interference in pursuit of one of the permissible aims set out under Article 8(2)?
- Is the interference proportionate to the permissible aim?
In practice, it is simply necessary to demonstrate the existence of a family/and or private life and that removal would not be proportionate (or reasonable in all the circumstances). The House of Lords in Huang made clear there is no test of exceptionality (as was previously thought to be the case) but that proportionality is a balancing exercise, i.e. the family/private life of the individual versus the legitimate interests of immigration control: “In an article 8 case where this question is reached, the ultimate question for the appellate immigration authority is whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by article 8. If the answer to this question is affirmative, the refusal is unlawful and the authority must so decide.”
If the applicant can provide a full evidential picture of his or her family and/or private life and the likely consequences of removal and show that the consequences of any removal would seriously damage that family/private life then he or she may be granted discretionary leave to remain in the UK, usually for a period of three years.
Many and varied factors can be taken into account in assessing proportionality. For example:-
- Nature of the relationship/s
- Are there any minor children in involved?
- Frequency of contact with relatives
- Is there any dependency involved in the relationship?
- Applicant`s and his family members` countries of nationality and immigration status
- Family members` ties with the UK
- Social or cultural traditions
- Applicant`s ties with his country of origin and the conditions on return
- Are there any health or other welfare issues involved?
- Availability of entry clearance facilities in the country of origin
- Has there been a delay in determining an earlier immigration application or removing the applicant?
- Would there be any detrimental effects on the family living in the UK caused by the removal of the applicant?
This list is far from exhaustive, and each case much be considered on its own facts.
There may also be a case when the applicant can claim that on being removed to his country of origin, he might face circumstances there that would violate his Article 8 rights even though he may have established no significant family or private life in the UK, i.e. where the potential violation is not directly caused by the removing state. The House of Lords considered such cases in the case of 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".
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 extra-territorially.
D. Private life and Family life applications
The new Appendix Private Life retains the four grounds on which permission can be granted based on private life. As reminder, these are:
- be a child resident in the UK for at least seven years who can’t reasonably be expected to leave (‘seven-year children’)
- be aged 18 to 24 and resident here for at least half their life (‘young adults’)
- be resident here for more than 20 years
- face very significant obstacles to integration in their country of return
As before, an asylum claimant who the Home Office wishes to remove to a “safe third country” can’t rely on obstacles to integration.
Until now, successful applicants on private life grounds have been granted 30 months’ permission to stay, following which they must reapply if they wish to extend their stay. Appendix Private Life now allows young adults and seven-year children to choose whether to apply for 30 months’ or 60 months’ permission; there are no additional requirements for the latter, and presumably the only difference will be the application fee.
Perhaps the most significant changes relate to the qualifying period for indefinite leave to remain. Previously, applicants had to complete ten years on the private life route before they could get ILR. Appendix Private Life changes that.
Most notably, a child who was born in the UK can apply for ILR immediately after spending the first seven years of their life here – even if they have never had any leave to remain. This change is welcome, as it avoids the need for children in this position repeatedly to reapply for extensions. However, they must still show that it would not be reasonable to expect them to leave the UK. Where neither parent has an independent right to remain, this will not necessarily be a straightforward task (see NA (Bangladesh & Others v Secretary of State for the Home Department  EWCA Civ 953).
For seven-year children who weren’t born in the UK, there is a new accelerated route enabling them to get ILR after five years’ leave instead of ten.
Everyone else on the private life route still needs to complete ten years after being granted permission before they can get ILR. But in a change from the previous position, those ten years need not all have been spent on the private life route: permission granted under Appendix FM, the ten-year family route or Article 8 outside the Rules can now count towards the qualifying period.
Alongside these (relatively) generous provisions, there are some new, stricter, suitability requirements. A prison sentence of at least 12 months now prevents a person from ever getting ILR on the private life route (previously they could do so if 15 years had passed since the end of the sentence). People in this position are presumably expected to make do with endless extensions.
A prison sentence of less than 12 months prevents a grant of ILR for the first five years after the sentence is completed. It also disqualifies a child or young adult from obtaining ILR on the accelerated five-year route. The same applies where the applicant has been involved in a sham marriage or civil partnership, practised deception or breached conditions, or where they have an outstanding litigation or NHS debt.
Finally, Appendix Private Life creates a new category called “child born in the UK to a person on the Private Life route”. The name is self-explanatory. Limited and indefinite leave will be granted in line with the parent.
The two new family life appendices only affect people seeking ILR on the ten-year family route. Appendix FM still applies to those on the five-year route.
Appendix Settlement Family Life introduces a new “continuous residence requirement” for ILR as a partner or parent on the ten-year route. Where previously there was no need for applicants to have spent a certain amount of time physically in the UK, now they are limited to a maximum of 180 days’ absence in any 12-month period. This appears to move the goalposts significantly for people who have never previously had to worry about the length of their time abroad.
It is mitigated somewhat by an exception for absences due to work, study, or supporting family overseas as long as the UK remains the applicant’s place of permanent residence and they maintain a family life here. Other exceptions include time spent out of the UK due to a pandemic or life-threatening illness.
Additionally, absences pre-dating the new appendix will be disregarded if they were followed by a grant of permission on private or family life grounds. In practice, this means that the first round of ten-year route settlement applicants need only worry about excess absences during their last period of permission; they may as a result need to obtain a further extension, but won’t have to start the ten-year qualification period all over again.
As mentioned above, applicants can now combine periods of permission in different private and family routes (including Appendix FM) in order to reach the requisite ten-year period for settlement. They also face tougher suitability requirements, as summarised above.
Article 8 is relevant to all immigration decisions to a greater or lesser extent and, where a person has no right to enter or remain in the UK under the Immigration Rules or the EEA Regulations, Article 8 might provide a basis of stay. The UK has also incorporated the use of Article 8 and how it will be used to decide client’s cases under Appendix FM of the Immigration Rules.
F. Appeals (In-country Applications only)
Applicants whose applications are refused will be given full rights of appeal, provided they are not left with any leave to remain in the UK at the time of the decision. In these appeals, applicants are also allowed to make use of fresh evidence in order to challenge the decision of the Home Office. The applicant will have 10 working days from the date of service of decision to lodge an appeal against that decision.
It is strongly advised to seek professional assistance in lodging an appeal against any decision of Home Office.
What services can we offer?
- We can advise on the procedure, requirements and merits of making an application, as well as on the required documents
- We can provide assistance in completing the application forms and submitting the application
- We can advise as to the merits of an appeal should your application be refused and assist and represent you in an appeal
- We can speak and reply or communicate in any manner to Home Office on behalf of our client.
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