“1. Everyone has the right to respect for his or her private and family life, his home and his correspondence.
2. 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 of the European Convention on Human Rights guarantees a right to respect for your family and private life. This right can include all of your family, not just your partner or children and is a right to live with them and spend time with them. Your private life means the activities that you engage in, including work, religious groups, or education. Your private life also includes your sexual orientation, relationships that fall short of a family life, your right to your home and also to make decisions about your health. However, Article 8 is what is known as a qualified right. This means that the Government, particularly the Home Office, is allowed to limit your right and to interfere with it. The Government should only interfere with these rights when it is necessary to achieve a legitimate aim. The interference should be the least possible to achieve this aim. A legitimate aim is set out in Article 8(2) above. Each state is allowed to set out in law when it will be necessary to interfere with someone’s Article 8 rights. Courts and tribunals can also interpret what is meant by necessary. The Government can interfere with your rights for certain reasons, which can be very broad. These include: enforcing border-control, being certain about what the law means and the economic well-being of the UK.
A private life means how you interact with the world. It refers to your relationships with those around you, including sexual activity. It can include your mental or physical health and well being. Everyone has a private life wherever they are, but just being present in the UK is not enough to establish that it would be disproportionate to refuse to let you stay. The longer you have been in the UK, the more likely it will be disproportionate to require you to leave. A decision is disproportionate when it would have a profound impact on your life and the steps to be taken are more than are necessary or appropriate, taking into account all of the circumstances. When applying on the basis of your private life you must always show that it would be disproportionate to interfere with your life by making you go to another country. Although your life in the UK is important to you, there are a number of reasons why it may be interfered with.
Immigration rules The Immigration Rules are made by the Home Office and set out what criteria you must fulfill in order to be given leave in the UK. The Immigration Rules set out when you can make an application because of your private life. These are: You have spent 10 years lawfully in the UK and there is no reason why you should not remain (see suitability and eligibility criteria below). The Rules require a caseworker to look at your age, strength of connections to the UK, personal history, domestic circumstances and compassionate circumstances. During this time, you must have been in the UK continuously. Continuous residence is broken if you have spent longer than 180 days outside the UK at any one time, or you have spent a total of 540 days outside the UK in the ten years.
Anyone who applies under this rule may be given indefinite leave to remain (ILR); periods where you have overstayed of up to 28 days will be discounted. You can also apply under Immigration Rule 276ADE where:
- • You have spent 20 years in the UK. This does not have to be lawful, although any time spent in prison does not count.
- • You are under 18 years old and have been in the UK for 7 years and it would not be reasonable to expect you to leave.
- • You are between 18 and under 25 years old and have been in the UK for half your life.
- • You have been in the UK for less than 20 years, but you have no social, cultural or family ties to the country you would go to if you left the UK.
Anyone who applies under these rules may be given leave to remain for 30 months (see below). An assessment of whether you have ties must look at all the links you have to your country of origin in the round. This means that the caseworker or immigration judge should look at how long you have spent in your country of origin, whether you speak the language or understand the culture and the extent of your family and friendship links there.
If you want to make an application under Article 8 or need more information regarding that matter do not hesitate to contact us.