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Human Rights Claims
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).