How Is Article 8 Considered in Appendix Private Life Applications?
Private Life Applications refer to a particular type of immigration route, governed by the rules contained in Appendix Private Life. It is somewhat different to other types of immigration applications as it allows an individual to make an application to stay in the UK on the basis that they have built up ‘private life ties’ whilst residing here. Therefore, the concept of ‘private life’, which is a right protected under Article 8 (ECHR), is a key part of a Private Life Application. As such, the focus of this blog post will be on exploring how the right to ‘private life’, and Article 8 more broadly, is considered in the context of Appendix Private Life Applications.
What is a Private Life Application?
As alluded to above, the Private Life route is an immigration application which is made on the basis that an Applicant has “built a private life” in the UK (per the Home Office’s Private Life guidance (published on 18 May 2023)). This Guidance goes on to outline that “Private life can be established by a person who has spent time in the UK with or without lawful permission” and that “since private life is normally established over a period of time, the period of residence in the UK is particularly important as a measure of that private life.” Therefore, this immigration category could potentially be very useful for individuals who have resided in the UK for an extended period of time and are seeking to regularise their stay here. Full consideration of the provisions of Appendix Private Life is outside the scope of this article, and in any event has been described in detail in a series of other blog posts and articles. As such, we will now turn our attention to the specifics of Article 8 and its treatment under the provisions of Appendix Private Life.
What is Article 8?
Article 8 is one of several rights contained within the European Convention on Human Rights. It is specifically aimed at protecting an individual’s right to respect for their “private and family life, home and correspondence”. As the name of this immigration route implies, the focus of a Private Life application would be on an individual’s ‘private life’ in the UK. This differs from ‘family life’, as elaborated by the ECtHR in AA v United Kingdom (2011) which stated that:
“Article 8 also protects the right to establish and develop relationships with other human beings and the outside world and can sometimes embrace aspects of an individual’s social identity, it must be accepted that the totality of social ties between settled migrants and the community in which they are living constitutes part of the concept of “private life” within the meaning of Article 8.”
As the foregoing quote demonstrates, the concept of ‘private life’ is very broad and “not susceptible to exhaustive definition” (Pretty v The United Kingdom (2002)). The ECtHR has attempted to provide some further clarification on the definition of ‘private life’ under Article 8 in their Guide on Article 8 of the European Convention on Human Rights (31 August 2022) where they explain that:
“Article 8 protects the right to personal development, whether in terms of personality or of personal autonomy, which is an important principle underlying the interpretation of the Article 8 guarantees. It encompasses the right for each individual to approach others in order to establish and develop relationships with them and with the outside world, that is, the right to a “private social life”.”
Because there is no “exhaustive definition” of private life, determining whether it is in fact present will require careful consideration of the specific facts of each case. It should also be noted that Article 8 is a qualified right, meaning that an individual’s right to private life can be interfered with by a decision-maker where they have a legal basis for doing so, where that interference pursues a legitimate aim, and that it is necessary in a democratic society (as specified in Article 8(2) ECHR). It therefore should not be assumed that an individual’s right to private life will always trump other factors, such as the public interest considerations outlined under paragraph 117B of the Nationality, Immigration and Asylum Act 2002.
How is Article 8 considered under Appendix Private Life?
Within Appendix Private Life itself, Article 8 is directly referenced at paragraphs PL 8.1 and PL 8.2, which cover eligibility requirements under the private life route when relying on Article 8 (ECHR).
Paragraph PL 8.1. provides that:
“If the applicant does not meet the suitability requirements (subject to PL 8.2), or does not meet any of the eligibility requirements in PL 3.1., PL 4.1. or PL 5.1. the decision maker must be satisfied that refusal of permission to stay would not breach Article 8 of the Human Rights Convention on the basis of private life.”
Paragraph PL 8.2. also outlines that:
“Where PL 8.1. applies and the applicant falls for refusal under suitability paragraphs S-LTR.1.2., S-LTR.1.3., S-LTR.1.4., S-LTR.1.5., S-LTR.1.6 or S-LTR 1.8. of Appendix FM of these rules the application on the Private Life route will be refused”.
The Home Office Guidance goes on to explain the operation of both of these paragraphs, detailing that these provisions come into play where an Applicant is unable to meet the suitability requirements, or eligibility requirements for a child, young person or adult set out in Appendix Private Life. Under these circumstances, the Guidance indicates that a decision-maker should consider whether a refusal would result in a breach of the Applicant’s Article 8 right to private life, as addressed in the section immediately above.
When considering an Applicant’s Article 8 rights, the guidance directs decision-makers to have regard to all the information and evidence that has been made available to them, to take into account the ‘best interests of any relevant children’ (discussed in the Home Office’s ‘Every child matters: statutory guidance’) and to consider whether refusal would produce an ‘unduly harsh outcome’ which is not justified by the public interest. As previously mentioned, paragraph 117B of the Nationality, Immigration and Asylum Act 2002 outlines some of these public interest considerations, which include:
- Maintaining effective immigration controls;
- Preventing burdens on the taxpayer;
- Promoting integration;
- Protecting the rights and freedoms of others.
(i) Family Life under Appendix Private Life:
As outlined above, Article 8 protects both the right to ‘private life’ and ‘family life’, and thus it is important to discuss how ‘family life’ is considered under Appendix Private Life. The guidance directly states that an individual applying on their own on the private life route “will be assessed on that basis without wishing for the impact on family life or family members to be taken into account”. The implication from this appears to be that an individual’s family life will not be assessed where family members are not included in the application. Likewise, the guidance confirms that where family members are included in an application then “the other family members must be taken into account and the application considered so as to produce the same result as if considered under Gen.3.2. of Appendix FM.”
It should be noted that, as outlined in Vikas Singh and Maneesh Singh vs SSHD , “the debate as to whether an applicant has or has not a family life for the purposes of Article 8 is liable to be arid and academic.” and, in any event, assessing the proportionality of a decision-makers interference with an Applicant’s Article 8 rights “are the same regardless of whether family or private life is engaged”, with the ultimate question being whether said interference was disproportionate.
(ii) Claims under paragraph PL 1.3.:
Lastly, it should be noted that Article 8 also comes into play under the provisions of paragraph PL 1.3. These provisions have the effect of waiving the validity requirements outlined in paragraphs PL 1.1. and PL 1.2.(a) and (c) of Appendix Private Life where a private life claim under Article 8 is made at the same time as a protection claim or where further submissions have been made in person after a protection claim has been refused or when the applicant is in detention or during an appeal.
As will hopefully have been seen from this blog post, Article 8 (ECHR) forms an important part of Appendix Private Life. It is worth emphasising that ‘private life’ is a very broad concept and, in addition to this, the threshold applied in Private Life applications is particularly high. Thus, determining whether ‘private life’ has been engaged will require careful examination of the specific facts of each individual case.