Human rights law stems from the ECHR (European Convention on Human Rights). Countries like the UK, which have signed the Convention, are normally bound by it. The ECHR aims to protect people’s rights in a number of different areas, for example, the right to private and family life.
A person may apply for leave to enter or remain in the UK under human rights principles if, for example, they are in the UK with permission and the UK Border Agency intends to remove them from the country. In such a situation, if appropriate, they can apply to remain based on their extensive family life in the UK.
In situations where a person has left their country and is unable to go back because they fear persecution may apply for asylum to stay in the UK as a refugee.
A person can apply for immigration bail if the Home Office is holding them on immigration matters. This means they might be released from detention.
There are many things to know about human rights applications (based on private and family life), continuous residence requirements for the private route, exceptional circumstances for permission in the UK, rules related to best interests of the child, Appendix Private Life Detention and deportation, Asylum and Refugee status, Stateless person, Human Trafficking, Humanitarian Protection status, and UK Immigration Bail.
A person has the right to respect for private and family life under Article 8 of the ECHR (European Convention on Human Rights). This continues to apply, even after Brexit, and is used in the UK immigration law in full.
A person can apply for leave despite being unable to meet one or more requirements of the relevant route. For example, financial requirement, English language requirement, etc., under Article 8 of the ECHR – Right to Private and Family Life.
The legal foundation for Private Life applications is found primarily in Appendix Private Life of the Immigration Rules, which has been in force since 20 June 2022, as well as Section 3 of the Immigration Act 1971 and Article 8 of the European Convention on Human Rights (ECHR), which protects the right to respect for private and family life.
In addition to the published Immigration Rules, Home Office caseworkers rely on internal guidance titled “Private Life: caseworker guidance”, which outlines how applications should be assessed. The guidance covers how to interpret legal thresholds such as “significant obstacles to integration”, how to assess the length of residence and the best interests of children, and when to consider discretionary factors.
A person who has established a private life in the UK can apply for leave to remain or indefinite leave to remain in the UK.
A person can apply for leave to enter or remain based on their family in the UK, such as close family relations (Husband/wife, Civil Partnerships, or child, etc.) or wider family relations (grandparents/grandchildren, or uncles/aunts, etc.).
The applicant will be required to prove that denying them the leave would be a breach of Article 8 of the ECHR.
Continuous residence for leave to remain on the private life route refers to the time spent in the UK (including time spent in the UK with or without permission) for an unbroken period.
Since a person is normally able to establish a private life over a period of time, the period of residence in the UK is critical as a measure of that private life. In this regard, a person can only apply based on their private life if they have lived continuously for 20 years in the UK at the date of application.
The Private Life route allows a child and their parents to apply for leave to remain on the same application where the child is under 18, has lived in the UK continuously for at least 7 years, and it would not be reasonable to expect the child to leave the UK.
Exceptional circumstances are defined as circumstances in which a refusal of entry clearance or LLR (limited leave to remain) application could or would be a breach of Article 8 of the ECHR - the right to respect for private and family life.
Under Article 8, exceptional circumstances, if a partner (spouse/civil partner) or parent applies or claims permission, and there are exceptional circumstances that following consideration of Appendix FM GEN.3.2. and GEN.3.3. mean that refusal of the application could or would result in unjustifiably harsh consequences for the applicant or their family (partner or children), LLR should be granted under paragraph D-LTRP.1.2. of the Appendix FM on the 10-year partner route or under paragraph D-LTRPT.1.2. of the Appendix FM on the 10-year parent route.
This is the case even though the applicant could not meet the requirements for a grant of leave on either basis before consideration was given to exceptional circumstances. Dependent children should be granted under paragraph D-LTRC.1.1. where the parent is being granted permission under Appendix FM unless the children qualify for a grant under the Private Life rules.
Section 55 of the Borders Citizenship and Immigration Act 2009, places a duty on the Home Office for the decision makers to consider the welfare of the children when reaching a decision on an application.
Under Appendix FM paragraph GEN.3.1, whether refusal of an entry clearance or LLR application as a partner or child, where the applicant does not satisfy the minimum income requirement or any other requirements, could the decision result in unjustifiably harsh consequences for the applicant, their partner, or a relevant child
Under Appendix FM paragraph GEN.3.2. whether refusal of an entry clearance or LLR application – where the applicant does not otherwise satisfy the requirements of that Appendix or Part 9 of the UK's Immigration Rules (general grounds for refusal) – would result in unjustifiably harsh consequences for the applicant or their family
Decision makers must take into account the best interests (or well-being) of any ‘relevant child’ as a primary consideration.
Before considering an application or claim for leave to remain on the private life route, the decision makers must check that it meets the validity requirements as set out in Appendix Private Life.
However, the validity requirement Appendix Private Life waives validity requirements where the claim for leave to remain is made in detention (and the claim raising Article 8 of the ECHR was submitted to a custody officer, prison officer, or a member of Home Office staff at the place of detention).
A foreign national can be deported if they have completed their prison sentence for committing a crime. Their family can also be deported.
The exception to deportation based on private life is set out at paragraph 13.2.3. of the Immigration Rules, and the exception based on family life is at paragraph 13.2.4.
A person liable for deportation or being considered for it can claim Article 8 of the ECHR where they have been convicted in the UK or overseas and have received a custodial sentence of 12 months or more, have been convicted of an offence that has caused serious harm, or are a persistent offender. Their claim for Article 8 will succeed if the requirements of an ‘exception to deportation’ under paragraph 13.2.3 are met, or where there are very compelling circumstances over and above those described in the exceptions.
A person must apply for asylum as soon as they arrive in the UK if they want to stay here as a refugee. They must have left their country and be unable to go back because they fear persecution (due to their race, religion, nationality, political opinion, or some other reasons) there.
If an application for asylum is successful, the applicant will normally be granted refugee status; otherwise, they may get humanitarian protection if they do not qualify for refugee status but cannot go back to their own country.
A person claiming asylum can include their partner and children under 18 as ‘dependants’ in their application if they’re with the main applicant in the UK.
A child can apply on their own if they have no adult relative claiming asylum in the UK.
A person not recognised as a national or citizen of any country and is also unable to live in any other country permanently, can apply to stay in the UK with a status of a stateless person. They must be in the UK at the time of application.
On the other hand, those who cannot return to their country because they fear persecution there must first apply for asylum. If their asylum claim is refused, they can claim to stay in the UK as a stateless person.
A partner or children under 18 of a person claiming stateless person status will need to be included on the application of the main applicant.
Human trafficking or modern slavery means a person being forced to do something against their will, usually by being hurt or threatened.
Such a person can apply to stay in the UK for up to 2 years if both of the following apply:
The applicant has a ‘conclusive grounds’ letter from the SCA (Single Competent Authority) confirming that they are a victim of human trafficking
The applicant entered the UK on a Domestic Worker in a Private Household visa, an Overseas Domestic Worker visa, or as a private servant of a diplomat (known as a Temporary Work - International Agreement visa).
Humanitarian protection is designed to give international protection to a person, where it is needed, who does not qualify for refugee status under the Refugee Convention. Humanitarian protection covers situations where someone may be at risk of serious harm (death penalty, unlawful killing, torture, etc.) if they go back to their country of origin, but they are also not recognised as a refugee because the risk is not of persecution for a reason covered by Article 1 of the 1951 Refugee Convention.
A person can apply for an immigration bail if they are held by the Home Office on immigration matters, whether in an immigration removal centre, a detention centre, or a prison. This means if the person is granted an immigration bail, they might be released from detention.
A person who has established their private life and family life in the UK can apply for leave to remain in the UK under Article 8 of the ECHR (European Convention on Human Rights) – Right to private and family life. The applicant will be required to demonstrate to the decision makers that refusal of their application will be a breach of their human rights under Article 8 of the ECHR.
Yes. If you are aged 18 or over and have spent less than 20 years in the UK, you can apply for permission if there would be very significant problems living in the country you’d have to go to.
You can apply for leave of 5 years if you are aged under 18 and have lived in the UK for at least 7 years continuously.
You can apply for ILR (Indefinite Leave to Remain) - also known as 'Settlement' - after 5 years if you are aged under 18 and you have resided in the UK continuously for 7 years or more, or you are aged between 18 and 24 and you have spent half your life in the UK.
You can apply to the Home Office to settle in the UK after 10 years if you are 18 or over, have lived for less than 20 years in the UK and would face very significant problems living in the country you’d have to go to or if you were born in the UK to a person who has leave to remain in the UK based on their private life, or is applying for it.
If you are liable to deportation from the UK, your partner and/or your child are also liable to be deported unless they hold ILR status in the UK in their own right, or they are British, or they have been living apart from you.
No. You must be in the UK when you claim asylum in the country.
The objective of immigration bail is to facilitate temporary release to those who have no legal basis to stay in the UK and are liable to be, or have been, detained for removal.
‘Exceptional’ does not mean ‘unique’ or ‘unusual’. Whilst all immigration cases are to some extent unique, those unique factors do not generally render them exceptional. For example, a case is not exceptional just because the applicant has missed the criteria set out in the Immigration Rules by a small margin.
‘Unjustifiably harsh consequences’ involve a harsh outcome or outcomes that are disproportionately severe or inhumane for the applicant or their family (spouse, children, etc.), which is not justified by the public interest.
Yes. People granted refugee or humanitarian protection status have the right to work in the UK. They can also access the UK’s welfare system on the same basis as permanent residents and British citizens.
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