In certain circumstances, you can apply for leave to remain in the UK based on your human rights. This means that even though you don’t meet the eligibility criteria for the permission, you can still be granted leave if removing you from the UK or asking you to leave the UK would be a breach of your human rights. Most UK human rights applications are based on Article 8 of the ECHR (European Convention on Human Rights), which protects the right to respect for family and private life.
On the other hand, Article 3 of the ECHR guarantees you protection from torture and inhuman treatment or degrading treatment or punishment.
Please note that the ECHR continues to apply to UK immigration laws even after Brexit.
Such applications can be based on application outside the rules or applications on exceptional circumstances (paragraph GEN 3.2) and paragraph EX 1 of the Appendix FM of the Immigration Rules.
Applications under Private Life can also be considered to be Human Rights applications and are dealt under Appendix Private Life of the Immigration Rules.
The following applications are based on Private Life -
Applications under Family Life under Immigration Rules
Please note that the evidential requirement is different for different application processes for each route mentioned here.
Human rights applications are typically based on Article 8 or Article 3 of the ECHR. Both articles are part of the European Convention on Human Rights, which is still a part of UK law through the Human Rights Act in the UK, even after the UK left the EU as a result of Brexit. Where Article 8 is not absolute, Article 3 is, which means Article 8 has limitations, but Article 3 has no exceptions or limitations to its protection, and hence the state cannot derogate or limit its application.
In this article, we are going to discuss a basic guide about the UK human rights application.
According to ECHR Article3 – Prohibition of torture, “No one shall be subjected to torture or inhuman or degrading treatment or punishment.” It bars the British government from deporting or returning individuals from the UK to countries where they would face a risk of, in absolute terms, suffering from serious harm, including torture (mental or physical), inhuman or degrading treatment such as serious physical assault or serious detention conditions, or punishment.
It involves the following situations and more –
According to ECHR Article 8, everyone has the right to respect their family and private life. Article 8 is not absolute but a limited right. This means, in the context of immigration, on one hand everyone has the right to a family and private life, while on the other, the state also has the right to exercise immigration control.
Factors that could be in your favour when you apply for leave to remain include having family in the UK (particularly British children or children who have lived in the UK for 7 years or more), lack of connection to your home country, length of time spent in the UK, community connections, and some mental and medical health needs.
The Home Office may decide to remove you from the UK if it is in accordance with the law and is necessary for a democratic society, public safety, national security, or the economic well-being of the country, for preventing crime or disorder, protecting public health or morals, or protecting the rights and freedoms of others. Such considerations are applicable where criminality exists. In such cases exceptions need to be considered under UK Borders Act 2007 and the Tribunal also carries out assessment under section 117 A to D of the Nationality Immigration Asylum Act 2002
For a valid ECHR Article 8 claim, a Family and Private Life includes –
Close Family Relations
Wider Family Relations
A child who is under the age of 18, was born in the UK and has lived in this country continuously for 7 or more years, would generally qualify immediately for ILR under the ‘Private Life Route to Settlement'. For this, the Home Office must be fully satisfied that it would be unreasonable to expect the child to leave the UK.
Young adults between the age of 18 and 25 can also qualify for ILR if they arrived in the UK before they turned 18 and have lived in the UK continuously for at least half of their life.
The UK’s private life immigration rules also have a provision for adult (those above the age of 18) ILR applicants who have lived in the UK continuously for at least 20 years. If an applicant does not meet these criteria, they may still make a successful ILR application if the Home Office is satisfied that there are “significant obstacles” for the applicant to integrate into the country where they would need to return to if they are refused permission to stay in the UK.
If you have a British child living in the UK, you may be eligible to apply for a family visa as their parent, as long as you have sole responsibility or direct access to your child. If your child is non-British, living in the UK, and not eligible for ILR based on living in the UK for at least 7 years, you may apply for leave to remain on the basis of your right to family life in the UK. To join your non-British child in the UK, you can make a successful UK human rights application if you can demonstrate to the Home Office that:
According to the immigration rules, you may also apply for leave to remain based on ECHR Article 3 medical grounds. To make a successful UK human right application on the basis of Article 3 medical grounds, you must be able to prove that you have a life-threatening illness and you are receiving treatment in the UK because the treatment is not available in the country you would need to return to.
The foundations are based on the case law Paposhvili v. Belgium [2016] ECHR 1113
and followed by the Supreme Court in AM (Zimbabwe) V. SSHD [2020] UKSC 17
The test which needs to satisfied in Article 3 cases is that cases
“involving the removal of a seriously ill person in which substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significantreduction in life expectancy.”… Paragraph 183 Paposhvili v. Belgium [2016] ECHR 1113
Each and every word is to be interpreted in the way stated that is there should be a serious decline in life expectancy if you are expected to leave the UK that means the life expectancy decline should be great in ten years or even more, decline of few years is not acceptable
If your application is successful, you will be granted leave to remain, and the length of leave you are given will depend on the type of application you have made. If the Home Office refuses your application, which is based on your family/private life, you may have the right to appeal. However, the Home Office may consider that your human rights claim is “clearly unfounded” and “certify” your claim. This means you have no right to appeal the refusal decision, in which case you may consider applying for a judicial review against the Home Office decision.
We specialise in all aspects of UK human rights applications for ILR and leave to remain. Our caseworker will:
You can reach out to our team at +44 (0) 20 3411 1261 to discuss your case and book a consultation.
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