Human Rights
You may be able to apply for the right to remain in the UK based on a human rights argument: your right to family and/or private life in the UK.
The right to family and private life is known as an Article 8 right, because it comes from Article 8 of the European Convention on Human Rights (ECHR), which is part of UK law through the Human Rights Act. This right continues to exist after Brexit. See below for more information about Article 8.
This page looks at what family and private life means and in what kinds of applications family and private might be relevant. Read this page for information about making an application, including fees and fee waivers if you can’t afford to pay the fee. Read this page to find out what happens if your application is successful, and what to do if your application is refused.
Family and private life
Your family life consists of your relationships with members of your family.
In terms of what Article 8 of the European Convention on Human Rights recognises as family life, your relationships with your wife, husband, civil partner, long-term partner or any children under 18 are considered to be family life. Your life with other family members is not always considered to amount to family life under Article 8.
Your private life could include things like your work or studies, your life with your friends and neighbours, and involvement with your local community or charity activities. It also includes long-term NHS medical treatment. You can read more about Article 8 (and Article 3) arguments based on medical grounds here.
Living in the UK does not, in itself, amount to private life in this legal sense.
Not everything we think would be family and private life would be defined as Article 8 family/private life. The definition is case-specific and is shaped by case law.
The Home Office’s position is that, in terms of family life, only relationships between spouses and/or between parents/carers and children under 18 engage family life in the Article 8 sense. The courts, however, have tended to disagree and prefer a case-specific determination of whether someone’s family or private life engages Article 8.
The 2014 Immigration Act gave instructions to judges on how to decide Article 8 human rights appeals. That legislation says that “little weight” should be given to a private life or relationships formed if you are in the UK unlawfully, or to private life established when your immigration status in the UK is “precarious”.
This means that it is difficult to succeed with family life arguments based on time in the UK when, for example, you had no application pending with the Home Office and no leave to remain (immigration status), or private life arguments when you had no right to remain or had time-limited leave to remain. Leave to remain may still be granted in these circumstances, if the case is exceptionally strong.
Article 8
Article 8 of the European Convention on Human Rights says:
- Everyone has the right to respect for his [or her] private and family life, his [or her] home and his [or her] correspondence.
- 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.
Article 8 is not absolute. This means there are circumstances in which this right can, lawfully, be breached.
Human rights law recognises that people have the right to a family and private life, but also recognises that the state has the right to exercise immigration control.
Article 8 arguments for the right to remain in the UK are therefore always about weighing up these opposing rights – if you can prove that the breach to your Article 8 rights would be so serious that it outweighs the state’s right to remove/deport you (a “disproportionate breach”), you should be granted leave to remain.
The Home Office may admit that they are breaching your Article 8 rights, but say that it is a proportionate breach when considering the other factors, and that your grounds to stay don’t outweigh the government’s right to exercise immigration control.
Factors that count against you in these arguments are things like poor immigration history and criminal convictions.
Factors that could be in your favour are family in the UK (particularly British children), lack of connection to your country of origin, length of time in the UK and community connections, and some medical and mental health needs.
Sometimes, the Home Office will say the breach of your family/private life rights is proportionate (or even that there will not be a breach) because your family members could leave the UK with you (even if they have the right to remain in the UK or even British citizenship), or they can keep in touch by Skype, email and occasional visits.
You may be told by that you could make a human rights application based on “compelling” or “exceptional” circumstances. The Home Office’s position, however, is that the immigration rules cover the extent of the UK’s obligations under human rights law, and so any Article 8 family/private life case that could be successful would meet the requirements of the immigration rules.
Nonetheless, the immigration rules cannot cover all the variety of people’s situations, and the courts have ruled that if a case does not meet the requirements of the immigration rules, Article 8 arguments should be considered outside of the rules.