Private & Family Life applications
Under the Human Rights Act 1998 it is unlawful for any public authority, including the Home Office (UK Visas & Immigration) and its immigration officers to act in a way that is inconsistent with the rights set out within the European Convention on Human Rights.
The protection of the European Convention on Human Rights extends to every person within the United Kingdom and also to those under the authority and control of the UK immigration authorities.
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What are the main eligibility requirements for leave to remain on human rights grounds?
In certain circumstances, you may be able to apply for leave to remain in the United Kingdom on the basis that to require you to leave would breach your human rights.
Anyone subject to an eligible immigration decision also has the right to appeal to the Immigration Tribunal on the ground that the immigration decision breaches their human rights.
The most common human rights provisions of the European Convention on Human Rights that are engaged in an immigration context are:
- Article 3: prohibition on torture and inhuman or degrading treatment or punishment;
- Article 8: right to respect for private and family life.
What else do you need to know
What else do I need to know about making a human rights application?
Article 3 is an absolute right and cannot be breached in any circumstances. This means that if requiring you to leave the UK would expose you to a real risk of ill-treatment, for example, from the government or non-State agents, or due to the withdrawal of medical care if you suffer from a serious medical condition, the UK may be required to grant you leave to remain.
Article 8 is a qualified right, which means that an interference with your private and family life needs to be disproportionate to constitute a breach of this right. In the immigration context, the right to respect for private and family life will often be balanced against the right of the state to control immigration and protect the economic well being of the country.
If you have a partner and/or child in the UK, Article 8 may be breached if a decision means that you would be separated from your family. It may also be breached if you have resided in the UK for a long period of time and established substantial ties here.
The Home Office must have regard to the best interests of the child when exercising its immigration functions.
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Human rights applications based on family life in the UK
Under the Immigration Rules, you may be granted leave to remain in the UK in order to protect your Article 8 right to family life where:
- You have a parental relationship with a child under the age of 18 who 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 to leave the UK; or
- You have a genuine relationship with a partner who is settled in the UK and there are insurmountable obstacles (i.e. very significant difficulties) to family life continuing outside the UK.
Human rights applications based on private life in the UK
Under the Immigration Rules, leave to remain may be granted in order to protect your Article 8 right to private life if:
- You have lived in the UK continuously for 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
If your circumstances do not meet the requirements of the Immigration Rules, but there are compelling factors that mean that a decision to remove you would amount to a disproportionate interference to your family or private life, it may be possible to apply for leave to remain on Article 8 grounds outside the Rules.