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Human Rights Applications To Remain In UK | Article 8 European Convention On Human Rights ('ECHR')
Human rights are the fundamental rights ‘to which a person is inherently entitled simply because she or he is a human being’.
The Human Rights Act 1998 (‘the Act’) sets out such rights that everyone in the UK is entitled to by incorporating ECHR into British law.
One of these fundamental rights is contained in Article 8 of the Act and is entitled:
‘Respect for your private and family life, home and correspondence’.
Article 8 is a right that is concerned with an individual’s need to live and develop in a social environment and to maintain relationships with others.
Nature of Private Life & Family Life
A person who has established a private and family life in the UK can apply to the Home Office for permission to remain in the UK under Article 8.
Private life includes things such as work, studies, life with friends and neighbours and involvement with local community or charity activities.
Family life consists of relationships with:
- civil partner,
- long term partner or
Operation of Article 8
Article 8 is a ‘qualified right’ in that whilst the law recognises the right of individuals to a private and family life, it recognises that the State has the right to exercise immigration control.
There can be no interference by a public authority with the exercise of this right save in accordance with the law and is necessary in the interests of:
- national security,
- public safety,
- the economic well-being of the country,
- the prevention of disorder or crime,
- the protection of health or morals, or
- the protection of the rights and freedoms of others.
Significance of Article 8
An adverse decision by the Home Office may impact affect an individual’s rights to respect for private or family life in many situations.
However, it is likely to be of particular importance where an individual:
- has been in the UK for a long time,
- has family in the UK,
- is a British citizen or someone with settled status (indefinite leave to remain) who is entitled to be joined in the UK by family,
- is a child, because of the importance of family life to a child’s development and welfare.
Article 8 Applications For Indefinite & Further Leave To Remain
10 Year Route Settlement:
Family Life With A Partner
A person who is the partner of a person present and settled in the UK or is a British Citizen can apply for leave to remain in the UK on the grounds of his/her family life in the UK with his partner. The Applicant must prove a genuine subsisting relationship with such a person for a minimum period of at least 2 years and that there are insurmountable obstacles to the relationship continuing elsewhere such as, partner’s ties to the UK including home, work, family, children in the UK.
Family Life as a Parent
A person who is the parent of a child who is present and settled in the UK, or is a British Citizen, can apply for leave to remain in the UK on the grounds of his/her life with a child. The parent must play an active role in the child’s upbringing and intend to continue to do so, or they must have sole responsibility for a child, or regular contact with a child if that child lives with their other parent. A child’s best interest is core to this application.
A Person who is over 18 and under the age of 25 and has Spent a Majority of their life in the UK
A person who is over the age of 18 and under the age of 25 can apply for leave to remain on the basis of his/her private life if he/she can show that they have spent at least half their life living continuously in the UK.
A Person who is Over the Age of 18 and Has Lived Less than 20 years in the UK
A person who is over the age of 18 and has lived less than 20 years in the UK can apply for leave to remain if they can show there would very significant obstacles to his/her integration (no social, cultural or family ties) into their country of origin if they left the UK.
20 Years Long Residence
A person who has lived in the UK continuously for 20 years, whether lawfully or unlawfully, can apply for leave to remain.
A Child who has lived in the UK for 7 years continuously
A child who has lived in the UK for 7 years continuously and is under 18 can apply for leave to remain in the UK. The Home Office will normally accept that a child is well settled and has made strong family and social ties to the UK.
Suitability & Eligibility Criteria
An Applicant will not be considered suitable for leave to remain if:
- a Deportation Order has been made,
- he/she has committed a criminal offence and been in prison for a period of twelve months and the Applicant’s presence is not conducive to the public good,
- there has been a failure to provide evidence when required,
- false documents or false representations have been tendered.
How Can We Help? | Kangs Specialist Immigration Team
Article 8 Applications are extremely complicated to pursue and each case is judged on its own merits.
It is at the discretion of the Home Office caseworker to assess the application and supporting evidence.
If a Human Rights application is declined and results in the Applicant or a family member being separated to a country where they have no support or ties, then grounds for an Appeal may exist.
With the rising cost of the fees payable upon every Application, it is imperative that expert professional advice is sought before submitting the same to ensure that it is correctly prepared to avoid the forfeiture of fees which may arise due to error.
Kangs Solicitors has an established specialist Immigration department, able to assist in all aspects of asylum and immigration at all stages from application preparation to representation at Tribunal and any subsequent Appeal Hearings.
We have a proven track record of successfully advising and guiding clients through the immigration application and appeals process.
Who Can I Contact For Help? | Kangs Immigration Solicitors
Please feel free to contact our Immigration Team through either of the following who will be happy to speak to you and guide you:
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