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Personal Immigration

Human Rights Claims

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Human Rights Claims

The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to and makes it unlawful for any public authority including the ‘Home Office’ to act in a way it is inconsistent with the rights set out in the European Convention on Human Rights ( ECHR) and incorporates this into UK’s domestic law.

Eligibility for leave on Human Rights grounds

In order to make a claim, it is necessary to show that the actions of the Home Office or any of its staff would result in a breach of the applicant’s human rights. The most common claims arise as a result of refusal for leave to enter or remain or when making a decision to remove an individual from the UK. The provisions of the ECHR, mostly engaged in an Immigration context is Article 3, that entails prohibition on torture and inhuman or degrading treatment/punishment and Article 8, that deals with right to respect for private and family life.

The likely scenario of an Article 3 breach may occur if an individual is required to leave the UK, but would expose to a high risk of mis-treatment from state or non-state agents at their home country or withdrawal of critical medical care that is required due to a serious medical condition. It is worth noting that Article 3 is an absolute right and it cannot be breached under any circumstances. If an individual is refused leave or is being removed and as a result, they would be separated from their partner or family in the UK, such a decision could potentially breach Article 8 rights of that individual and family. Article 8 is a qualified right and this means that it does not always render a breach, but only if the interference by the Home Office is deemed as disproportionate. The Secretary of State has a duty to impose a fair balance between the right to respect private and family life and the immigration control.

The Human Rights claims normally have a right of appeal to the Immigration Tribunals, unless the Home Office certifies the claim as clearly unfounded. The Home Office normally will give due consideration to an applicant’s length of residence in the UK, impact to any family members including considering the best interests of the children and any other substantial ties applicant may have in the UK. It is also possible to make a leave to remain application for other purposes not covered by any application forms under FLR (HRO).

How can we assist?

Our Immigration lawyers at City Legal have immense experience in assisting clients on human rights, family and private life visa applications. We can undertake a detailed assessment of the applicant’s circumstances and identify if the refusal would breach any human rights and prepare necessary legal submissions on that basis and in accordance with up-to-date case laws . We are a multi award winning law firm and pride ourselves in being approachable, innovative and always going that extra mile to make sure our clients receive the individual attention they deserve. Our Immigration team maintains a high reputation and is committed to provide clear, transparent and reliable advice to our clients.

Frequently Asked Questions

Is there a right of appeal to all Human Rights applications?

The Human Rights applications normally carry a right of appeal unless the Home Office certifies the claim as clearly unfounded. It is possible to challenge this certification by the form of a Judicial Review.

Is it possible to rely on ECHR even after the UK leaves the EU?

UK’s adherence to the ECHR is completely separate from its membership of the European Union and Brexit should have no effect on UK’s obligations under the convention.

What is Leave outside the Immigration rules?

Leave outside the Immigration rules comes in different forms and is normally granted due to those in particularly compelling circumstances and not covered by the Immigration rules. It is also possible for applicants to fail in Article 8 claim under the Immigration rules, but succeed tremendously outside the Immigration rules as a result of the exceptional compassionate circumstance surrounding the human rights applications.

Can I make a Human Rights claim within the Immigration rules?

Before 9 July 2012, all the applications made under Article 8 of the European Convention on Human Rights (ECHR) were considered by the Home Office outside the Immigration Rules and under the Discretionary Leave policy of the Home Office. The relevant paragraphs of the Immigration Rules for the consideration of such Article 8 claims include paragraph 276ADE to decide the private life factor of the Article 8 claim and Appendix FM to decide the family life of the Article 8 claim.

What is the duration of the leave granted under the Human Rights route?

Any applications under Human Rights route within or outside the Immigration rules, if successful is normally granted for an initial period 2.5 years. This is then renewable, if the circumstances prevail and upon completing 10 years under the route, applicants can apply for settlement.
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