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Article 8 ECHR basics for OISC advisers

Article 8 ECHR refers to a person’s right to family and private life. This blog gives some basic pointers on how and when Article 8 ECHR should be referred to and when you could expect a positive decision from the Home Office using these provisions.

How does the Home Office approach Article 8?

The Home Office considers the Immigration Rules to be a near complete code of Article 8 ECHR. As such there is limited provision for grants outside of the Rules by the Home Office, but there is provision and it is sometimes done. Even if the Home Office does refuse your application, you are more likely to win on appeal if the application under Article 8 ECHR was properly prepared in the first instance.

When preparing legal representations to the Home Office you should first address the Immigration Rules contained at Appendix FM and 276 of the Immigration Rules. The Home Office’s own guidance states that it will grant leave outside of the Immigration Rules in certain circumstances. You should review this guidance when drafting legal representations it is available here: Home Office guidance on family and private life.

So having addressed this, you can move on to Article 8 ECHR outside of the Immigration Rules and in order to do this, you will need to know the basics of what this actually means.

What constitutes “private life” and “family life” in immigration law?

It is worth noting that is not enough to show that an applicant or appellant has ‘family life’ or ‘private life’. Most people in the UK will have ‘private life’ of some description. Private life is a broad concept and basically includes a person’s right to make decisions about friendships, identity, relationships, sexuality and so on. A person that has come to the UK and studied in the UK, will have acquired private life to some degree.

Family life is an easier concept to understand. It is more focused on relationships which will usually, but not always, be with blood relatives. A person is presumed to have family life with their spouse, as are a parent and their minor child. This means that these relationships will usually be found to amount to family life under Article 8, unless there is evidence to the contrary. For example, a parent and child would normally have family life, but if the child had been adopted with no contact between the parent and child, it likely that the Home Office would argue that family life did not exist.

Family life between a parent and an adult child will not be presumed, there will need to be an assessment of whether family life exists will need to take place. You are much more likely to be able to successfully argue that an applicant aged 19, who has always lived at home and is still in full-time education has family life with his parents, than a child aged 27 who has moved out of home and visits his parents regularly. A good synopsis of the law related to showing whether family exists can be seen in Kugathas v SSHD [2003] EWCA Civ 31.

Does Article 8 guarantee your right to residence?

So that means that if you can show you have family life, or private life, then you can stay? Alas no, Article 8 is not what is known as an ‘absolute’ or ‘non-derogable’. This means that just showing your Article 8 rights will be infringed on your removal from the UK is insufficient to be granted a right to remain in the UK. Your right to a private life and/or family life must be weighed against the Home Office’s right to ‘effective immigration control’. In some instances, lengthy residence in the UK, considerable contribution to the community, particularly strong friendships or worth in the UK could ‘out-weigh’ the Home Office need for effective immigration control but you mast make it clear in these legal representations how this is outweighed.

Interested in learning more about immigration law, follow this blog.

If you are interested in launching an appeal on the basis of Article 8 please contact our expert solicitors at: 020 7118 4546 or email us at info@westkin.com

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