HUMAN RIGHTS

Under the Human Rights Act 1998, it is unlawful for any public authority, including the Home Office (UK Visas & Immigration) and its immigration officers, to act in a manner that is inconsistent with the rights enshrined in the European Convention on Human Rights (ECHR).

This legislation ensures that the fundamental rights and freedoms protected by the ECHR are upheld within the UK, applying not only to British citizens but to every individual present within the UK, regardless of their immigration status.

The scope of these protections also extends to those under the authority and control of UK immigration authorities, including individuals detained in immigration centres or those facing deportation.

Protection Under the European Convention on Human Rights

The European Convention on Human Rights is a crucial international treaty that outlines various civil and political rights. These rights include protection from torture, the right to a fair trial, freedom of expression, and the right to respect for private and family life.

In the context of UK immigration, the ECHR serves as a safeguard against actions that could violate the basic human rights of individuals subject to immigration control.

The Human Rights Act 1998 incorporates the ECHR into UK law, making it possible to challenge decisions made by public authorities, including immigration decisions, if they are inconsistent with the rights protected by the Convention.

What Are the Main Eligibility Requirements for Leave to Remain on Human Rights Grounds?

In certain circumstances, you may be eligible to apply for leave to remain in the UK on human rights grounds.

This typically involves demonstrating that requiring you to leave the UK would result in a breach of your human rights as protected under the ECHR. Some of the most relevant rights in the immigration context include:

• Article 3: Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – This is an absolute right, meaning it cannot be breached under any circumstances. If you can show that returning to your home country would expose you to a real risk of torture, inhuman, or degrading treatment—whether from the government, non-state actors, or due to a lack of adequate medical care—the UK may be obliged to grant you leave to remain.
• Article 8: Right to Respect for Private and Family Life – This is a qualified right, meaning it can be interfered with if it is deemed necessary and proportionate in a democratic society, particularly to protect public safety, national security, or the economic well-being of the country. However, in immigration cases, Article 8 is often invoked to argue that deportation or removal from the UK would unjustifiably interfere with an individual’s established private and family life. This can include situations where deportation would lead to separation from family members or disrupt long-standing ties within the UK.

The Right to Appeal Immigration Decisions on Human Rights Grounds

If you are subject to an adverse immigration decision, such as a refusal of leave to remain, you may have the right to appeal to the Immigration Tribunal on the basis that the decision breaches your human rights. This appeal process allows you to challenge the decision before an independent body, which will assess whether the Home Office’s actions are consistent with the ECHR.

What Else Do I Need to Know About Making a Human Rights Application?

Article 3: An Absolute Right

Article 3 of the ECHR provides protection against torture and inhuman or degrading treatment or punishment. Because this right is absolute, there are no circumstances under which it can be lawfully breached.

In the context of immigration, if it can be demonstrated that returning you to your country of origin would subject you to such treatment, whether from state or non-state actors, or due to the absence of necessary medical treatment, the UK is under an obligation to allow you to remain. This is a critical provision for those fleeing persecution, conflict, or severe human rights abuses.

Article 8: A Qualified Right

Article 8 protects the right to respect for your private and family life, home, and correspondence. However, unlike Article 3, Article 8 is a qualified right, which means that the state can interfere with this right if it is necessary and proportionate to do so.

In immigration cases, the state’s interest in controlling immigration is often weighed against the individual’s right to maintain their private and family life in the UK.

Factors such as the length of time you have lived in the UK, your connections to the country, and the impact on family members, particularly children, are crucial considerations in these cases. The Home Office must also take into account the best interests of any children involved, as this is a primary consideration in all immigration decisions.

If you have established a family life in the UK, such as having a partner or children who are British citizens or settled persons, or if you have resided in the UK for a long time and formed strong social, cultural, or economic ties, your removal from the UK could constitute a disproportionate interference with your Article 8 rights. Each case is unique, and the strength of your claim will depend on the specific circumstances of your situation.

How Our Immigration Barristers Can Help

Our immigration barristers are highly skilled and experienced in preparing and submitting human rights-based applications for leave to remain in the UK. We understand the complexities of the Home Office’s rules, policies, and case law, and we are well-equipped to guide you through the process of making a human rights claim.

Whether you are applying for leave to remain on the basis of Article 3, Article 8, or other relevant human rights provisions, we can assist you in gathering the necessary evidence, preparing detailed legal submissions, and representing you in appeals if your application is refused.

Our team is dedicated to providing a professional and supportive service. We take the time to understand your unique circumstances and develop a tailored strategy to maximise your chances of success. We pride ourselves on our approachability and proactive attitude, ensuring that we meet our clients’ needs with clarity and reliability.

Whether you are facing removal from the UK or seeking to secure your status on human rights grounds, our barristers are committed to delivering expert legal advice and representation every step of the way.