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Human Rights – Article 8 ECHR Right to Private & Family Life

The UK has an obligation under the European Convention on Human Rights (ECHR) to respect the private and family life to everyone within their jurisdiction. Article 8 of the ECHR states:

  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.

If you believe that you have established or strengthened your private and/or family life in the UK then you can make an application to regularise your stay in the UK based on the Immigration Rules, as explained below or outside of the Immigration Rules on the basis of Article 8.

Please note: Human Rights applications, in particular Article 8 applications, are complex immigration matters and it is highly advisable to seek legal advice in order to discuss your individual case and circumstances in detail.

Immigration Rules

Since 9th July 2012 the Home Office have sought to define Article 8 private life within the Immigration Rules. Under the Rules you can make an application for Article 8 private life if any of the following apply:

  1. You have lived continuously in the UK for at least 20 years (discounting any period of imprisonment); or
  2. You are under the age of 18 years and have lived continuously in the UK for at least 7 years (discounting any period of imprisonment) and it would not be reasonable to expect you to leave the UK; or
  3. You are aged 18 years or above and under 25 years and you have spent at least half of your life living continuously in the UK (discounting any period of imprisonment); or
  4. You are aged 18 years or above, have lived continuously in the UK for less than 20 years (discounting any period of imprisonment) 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.

However, even if you do not fit within the above criteria listed in the Immigration Rules the Home Office still have a duty to consider your Article 8 application outside of the Immigration Rules.

Outside of the Immigration Rules

If you believe that you have established and/or strengthened your private and/or family life in the UK, and if you do not meet the Home Office’s narrow interpretation of this as contained in their Immigration Rules above, then you can make an application on the basis of Article 8 outside of the Immigration Rules.

The Home Office will have to consider Article 8 of the ECHR, right to private and family life, relevant case law and your individual circumstances. As part of their decision-making process they should consider the five-stage test as set out in the case of R (Razgar) V SSHD [2004] UKHL 27, which sets out:

  1. Whether someone’s removal from the UK be an interference with their private or family life;
  2. Whether this interference engage the operation of Article 8;
  3. Whether the interference (removing the person from the UK) be in accordance with the law;
  4. Whether the interference comply with the legitimate aim of a democratic society; and
  5. Whether such an interference be proportionate to the legitimate public end sought to be achieved by the public authority (the Home Office)?

There are many other aspects that the Home Office will consider when assessing your case, such as your ties to the UK, the length of time you have spent in the UK, whether there are any insurmountable obstacles as to why you cannot return to your home country, or whether there are exceptional circumstances in your case. It is for these reasons that we strongly recommend that you seek legal advice.

We here at Imperial & Legal are able to provide support at any stage of your Article 8 application, including:

  • Reviewing your case and advising you in detail on Article 8 ECHR, including case law and public interest considerations;
  • Advising you on the documents and evidence required for your application;
  • Preparing your Article 8 application;
  • Drafting detailed legal representations in support of your Article 8 case;
  • Constant support of your case.

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