Human Rights Visa Applications

The connection between UK immigration and human rights law is central to how immigration decisions are made. In simple terms, UK visa decisions must comply with human rights obligations, especially under the Human Rights Act 1998 and the ECHR (European Convention on Human Rights). The Human Rights Act 1998 is a UK law that incorporates most ECHR rights into domestic law and allows UK courts to apply those rights directly.

The Human Rights Act includes key ECHR rights such as Article 2 (Right to life), Article 3 (Prohibition of torture), Article 5 (Liberty), Article 6 (Fair trial), and Article 8 (Right to Private and family life). 

These are called “Convention rights” in the HRA. 

Human Rights Application in UK Immigration Law

In certain circumstances, a person can apply for leave to enter or remain in the UK based on their human rights. This means that even though one does meet the eligibility or suitability criteria for the permission, they can still apply for leave if removing them from the UK or asking them to leave the UK would be a breach of their human rights. Most UK human rights applications are based on the ECHR - Article 8, which protects the right to respect for family and private life. 

On the other hand, ECHR - Article 3 guarantees a person protection from torture and inhuman treatment or degrading treatment or punishment. 

Please note that the ECHR rights continue to apply to UK immigration laws even after Brexit.

Which UK Visas Can Involve Human Rights Claims?

In UK immigration law, human rights claims are not limited to one specific visa type. Instead, they can arise across many visa categories whenever a decision affects rights protected under the Human Rights Act 1998 and the European Convention on Human Rights—especially ECHR - Article 8 (private or family life) and ECHR - Article 3 (risk of harm).

A person can apply for permission in the UK on the basis of their Human rights, which are typically based on Article 8 or Article 3 of the ECHR. ECHR is 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.  Importantly, Article 8 is not absolute, but Article 3 is. This 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.   

Please note that Appendix Private Life within the Immigration Rules has replaced the Immigration Rules - Paragraph 276ADE(1), which had provided protection for an individual’s private life since 9 July 2012. This appendix sets out the current framework under which a person may apply for leave to remain in the UK on the basis of establishing a private life in the UK.

How to apply on the basis of the ECHR - Article 3  

According to ECHR Article 3 – Prohibition of torture (an absolute right), “No one shall be subjected to torture or inhuman or degrading treatment or punishment.” It bars the UK government from deporting or returning people to countries where they would, in absolute terms, face a risk of suffering from serious harm, including torture (mental/physical), inhuman or degrading treatment, such as serious physical assault/detention conditions/punishment. 

It involves considering an application where the following situations exist –

• If a person is most likely to suffer torture/harsh imprisonment/persecution if returned to their home country

• If a person has a life-threatening illness and they are receiving treatment in the UK because the treatment is not available in their home country

• If a person’s home country is a war zone and/or suffers from conditions of severe impoverishment

The leading case on Article 3 is AM (Zimbabwe) V. SSHD [2020] UKSC 17 held that the correct test which would amount to breach of Article 3 would be breached in situations – where – 

“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 significant reduction in life expectancy.”…….. Paragraph 183 Paposhvili v. Belgium [2016] ECHR 1113

Immigration routes where Human Rights under Article 3 – ECHR apply include:

Asylum / Refugee Protection, where applicants argue they face a real risk of torture, serious harm, or persecution in their home country.

Humanitarian Protection / Discretionary Leave, which applies to people who do not meet refugee criteria but still face serious harm. For example, internal armed conflict or widespread violence in the home country. Decisions in such applications consider the risk of inhuman or degrading treatment.

Deportation or Removal Cases where Article 3 claims are crucial in challenging deportation/removal. Even foreign nationals convicted of crimes or overstayers may invoke Article 3 to stop removal if they would face torture, inhuman, or degrading treatment abroad. The UK courts cannot deport someone if there is a real risk under ECHR - Article 3. Examples include foreign criminals, overstayers, or people with past persecution.

Detention Cases where Immigration detainees can claim Article 3 if conditions of detention are inhuman or degrading, or risk arises due to health, age, or vulnerability. Courts sometimes use ECHR - Article 3 to challenge prolonged detention. 

Leave to remain based on medical grounds, where to make a successful UK human rights application on this basis, the applicant must be able to prove that they have a life-threatening illness and they are receiving treatment in the UK because the treatment is not available in the country they would need to return to.

Key Evidence for ECHR - Article 3

A person applying on the basis of human rights under the ECHR – Article 3 can submit documents such as country of origin reports showing risks, medical reports (if a serious health risk exists), witness statements or affidavits, and expert opinions on risks (security, health, or political situation).

How to apply on the basis of ECHR - Article 8 

According to ECHR - Article 8, every individual has the right to receive respect for their family and private life. However, Article 8 is not absolute but a limited right. This, in the context of immigration, means that even though every person has the right to a family and private life, the state also has the right to exercise immigration control. Home Office assesses proportionality: would refusal/removal be unjustifiably harsh for the applicant and their family member?

R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27, [2004] 2 AC 368, paras 17-20, 26, 27, 60, 77, when, having suggested a series of questions which an adjudicator would have to ask and answer in deciding a Convention question, it said that the judgment on proportionality "must always involve the striking of a fair balance between the rights of the individual and the interests of the community which is inherent in the whole of the Convention. The severity and consequences of the interference will call for careful assessment at this stage"

Factors that could be in a person’s favour when they apply for leave to remain in the UK include having family in the UK (particularly British children), lack of connection to their home country, length of time they have spent in the UK, community connections they have developed in the UK, and some mental and medical health needs. Even if these conditions apply, the Home Office may decide to remove a person 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.

For a valid claim under the ECHR - Article 8 on the basis of family life in the UK, family members include –

Close Family Relations 

• Spouse (Husband/wife), civil partner, unmarried or same-sex partner 

• Parent / Child / Adopted Child 

Other Family Relations

• Parents / Adult Children 

• Grandparents/ Grandchildren 

• Uncles / Aunts 

• Nephews / Nieces

• Adult Siblings 

• Foster Families UK 

Human Rights Application on the basis of Family Life

If a person applying as a partner (spouse, civil partner, or unmarried partner) or parent cannot meet the financial requirement and/or English language requirement they may still be able to apply for a visa or extend their permission to stay if:

• They have a child in the UK who is a British or Irish citizen or has lived in the UK for 7 years and it would be unreasonable for them to leave the UK

• It would breach their human rights under the ECHR – Article 8 to stop them coming to the UK or make them leave

Human Rights Application on the basis of Private Life 

Even if a person fails to meet eligibility and suitability requirements under the Immigration Rules, the Home Office must assess if Article 8 is engaged meaning has the person established a private life in the UK or is a family member of someone who has established a private life in the UK, and refusal would force them to leave the UK, which would be unjustifiably harsh. Decision makers must consider the applicant’s length of stay in the UK, Age, level of integration in the UK’s society, ties to their home country, immigration history, and, most importantly, the best interests of any children.

A person can apply on the basis of private life under the Appendix Private Life in the UK if they are already living in the UK and one of the following conditions is true on the date of application:

1. Applicant is a child under 18 who has lived in the UK for 7 or more years, and it would be unreasonable to expect them to leave the UK 

2. The applicant is aged between 18 and 24, and they have lived continuously in the UK for at least half their life 

3. The applicant is aged 18 or over, has spent less than 20 years in the UK, and would have very significant difficulties living in the country; they would have to go to

4. The applicant has been in the UK continuously for 20 or more years

5. The applicant was born in the UK to a person who has or is applying for permission to stay in the UK based on their private life

Key Evidence for ECHR - Article 8 

A person applying on the basis of Human Rights under the ECHR – Article 8 can submit documents such as 

Proof of family ties in the UK, such as birth certificates, marriage/civil partnership documents, photos, or communication evidence 

Proof of residence/integration, such as school records, tenancy agreements, utility bills, or employment history 

Community and social ties, such as letters from employers, schools, or community groups. 

How can Visa and Migration help?

We specialise in all aspects of UK human rights and immigration laws. Therefore, if you want to apply for a UK visa on the basis of a human rights claim, our caseworker will:

• Determine if your immigration application, made based on your human rights and those of your family members, is valid.

• Prepare and submit your application.

• Prepare and submit documentary evidence to prove that human rights claims are valid. 

• Respond to any concerns/queries raised by the Home Office on your behalf.

• Handle any UK human rights application refusal.

For expert advice and queries on Human Rights and Immigration Law, you can call us at +44 (0)20 3411 1261 or write to info@visaandmigration.com.