The Human Rights Act 1998 was introduced primarily as a means to incorporate rights and liberties protected and preserved by the European Convention on Human Rights in to Domestic law.
In the context of Immigration Article 8 is one of the most relied upon of all the Articles including Articles 2 and 3 which is the right to life and the right not to be subjected to inhuman or degrading treatment. However Article 8 is one of the most open-ended of the Convention rights, covering a growing number of issues and extending to protect a range of interests that do not fit into other Convention categories.
There are four express protected interests under Article 8:
(1) private life;
Use of Article 8 for Immigration
Previously if you did not have clear visa rights to remain but have a partner or children you were permitted to apply for discretionary leave to remain in the UK without needing to rely on Human Rights law. If successful, you would have been granted 3 years leave to remain, or if you had lived in the UK illegally you could apply for long residence after 14 years and be granted indefinite leave to remain.
This has now all changed and you are no longer permitted to apply under these provisions. There are only very exceptional reasons whereby an application being made outside of the immigration rules are accepted.
There are a number of reasons why a person may be in the United Kingdom without permission to do so however since July 2012 the process of applying to remain in the UK on the basis of Article 8 has changed. The United Kingdom has chosen to incorporate Article 8 into the Immigration Rules.
Human Rights based Immigration application
The main application made to the Home Office in relation to Article 8 is the right to a family and private life. Many people rely on this to seek permission to remain in the United Kingdom.
As a consequence, an application can be made by a person without immigration status in the UK if they have a British or settled partner, British children, or children who are not British but who have lived in the UK for a continuous period of7 years or more.
The rules regarding children are technical but the main aspects to be aware of :-
In the case of an adult, the adult applicant must have a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen, settled in the UK or in the UK with refugee leave or humanitarian protection, and there are insurmountable obstacles to family life with that partner continuing outside the UK.
Where someone can apply they will not have to satisfy maintenance, accommodation or English language requirements.
Possible drawbacks of applying under the Human Rights Act provisions
If you are successful under this route you will not be eligible for settlement until after 10 years therefore it may be advisable for you to leave the UK and apply from overseas to re-enter the UK under the proper route as a spouse or a partner as this would lead to settlement after 5 years.
Application for leave to remain based on Right to Private Life
Private life in the UK (10-year route)
Previously the Immigration Rules contained a provision that someone who could show they had been in the UK continuously for 14 years could apply for settlement. However, private life based applications have now been limited to 4 categories.
The Immigration Rules on Article 8 private life relate to the length of time someone has spent in the UK (excluding time spent in prison).
The requirements are:
Reasons an application might fail
There are general ‘suitability’ grounds for refusal. These can relate to any criminal convictions or if your presence is deemed not to be conducive to the public good. If you have supplied false information or you owe fees on outstanding NHS treatment received when not eligible these may also result in rejection of your application.
If you meet the requirements and the suitability grounds of refusal are not applied to you then you will be granted a period of leave not exceeding 30 months.
How lawyers can help and why it’s worth instructing lawyers
Living and/or working illegally is incredibly stressful At any time UK enforcement can stop you, detain you and remove you from the United Kingdom.
Here at Darlingtons we offer an experienced, value for money service. We will ensure that you obtain all the necessary evidence to support any application to remain in the United Kingdom. We advise clients throughout London and can either meet with you at our North London main office or in our Central London office.