WHAT IS THE DEFINITION OF “PRIVATE AND FAMILY” ? THE TRICKY LANGUAGE OF ARTICLE 8 AND HOW IT EFFECTS THE LAW SURROUNDING IMMIGRATION APPEALS

Article 8 of the ECHR states “ Everyone has the right to respect for his family life , home and his correspondence “.However when  an Article 8 appeal reaches the court the first and the foremost fact that must be established is that there exits a “family life” and that it will be ruined if the Article 8 is dismissed .

So far the approach of the of Home office while determining whether or not to consider  Article 8 is less relaxed , stating that family life can not exit outside of the nuclear family .

 Family life is presumed to exist between husband and wives and minor children and the court must take into account the best interests of the child when embarking on its decision-making process. Whereas as the  situation regarding adult children is less certain.

 However, in the case of Singh & SSHD Sir Stanley Burnton, giving the judgment of the Court of Appeal, stated;

“A young adult living with his parents or siblings will normally have a family life to be respected under Article 8. A child enjoying a family life with his parents does not suddenly cease to have a family life at midnight as he turns 18 years of age. On the other hand, a young adult living independently of his parents may well not have a family life for the purposes of Article 8.”

 It has been established that it includes a person’s “ right to establish and to develop relationships with other human beings, especially in the emotional field for the development and fulfillment of one’s own personality” – (X. v Iceland (Application no. 6825/74)).

In Huang v SSHD; Kashmiri v SSHD the House of Lords stated that the ‘ultimate question’ in an Article 8 case (for both private andfamily life) was:

“Whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favor of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by Article 8. If the answer to this question is affirmative, the refusal is unlawful and the authority must so decide.”

 An example of how narrowly the principle of proportionality is applied to private life can be seen in the case of Alam (s 85A—commencement–Article 8) Bangladesh. The tribunal considered a decision where the private life being interfered with was the study for an ACCA accountancy qualification. Although Article 8 was engaged, it held that the interference with the appellant’s desire to continue after four years of studies was not sufficient to outweigh their failure to meet the requirements of the Immigration Rules. This decision an

However, appealing on the grounds of breach of private life can still be successful, especially where the appellant is in work.  For example, in R (Vellore) v SSHD an Indian national, Mr Vellore was refused Indefinite Leave to Remain in the work permit category due to being out of the UK for more than four months in one go during the five-year qualifying period, which contravened the Home Office’s then existing policy on continuous lawful residence. The appellant had to leave the UK to recuperate following a motorbike accident. The Immigration Judge had found that he had built up a private life in the UK through living and working here for around five years, he had been away from the UK longer than intended through circumstances totally out of his control and he would have complied with the rules and the interpretation of the rules if he had returned as intended. As such, it would be disproportionate for him to return to India and resume his private life there and the reasoning behind it was upheld by the Supreme Court.

It would not be incorrect to conclude that appeals based upon Article 8 have a very unpredictable outcome and the future of the families that wish to remain together entirely depends on how Article 8 was interpreted by the Court .

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