All You Need to Know About Spouse Visa and Article 8 Human Rights Grounds

UK Spouse Visa Couple Holding Hands

If you are applying for a UK spouse visa and have not instructed a top immigration law firm, you may want to change your mind and instruct a lawyer to provide you with the best legal advice; this will be crucial in ensuring that your application is submitted with (if possible), the option to bring an appeal on Human Rights grounds, should your requires for a visa be rejected.

Your immigration visa solicitor will tell you that since 2015, there has been no right of appeal for visa applications made under the immigration rules unless:

  • the Secretary of State for the Home Department (SSHD) refuses a protection claim
  • the SSHD refuses a Human Rights claim, or
  • the SSHD decides to revoke a person’s protection status

For this reason, it is imperative that when making an application for a UK spouse visa, your immigration lawyer provides you with the best chance of being able to appeal by ensuring any Human Rights grounds are referenced in the submission.

A ‘protection claim’ can be made by a person whose removal would breach the UK’s obligations under the Refugee Convention or in relation to their eligibility for a grant of humanitarian protection.  A person has protected status if they have been granted leave to enter or as a refugee or as a person eligible for a grant of humanitarian protection.  The question as to what constitutes a Human Rights claim is more complicated.

Article 8 of the European Convention on Human Rights

Article 8 is considered one of the most open-ended provisions in the European Convention on Human Rights (ECHR).

It reads as follows:

Article 8 – Right to respect for private and family life

1. Everyone has the right to respect for his 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.

Many UK spouse visa appeals are made on Article 8 grounds; one of the most famous being the case of R (on the application of MM (Lebanon)) v Secretary of State for the Home Department

In this case, the Supreme Court held that the requirement in the immigration rules that the sponsoring spouse or civil partner of a non-EEA applicant for leave to enter had to have an income of at least £18,600 per annum (known as the Minimum Income Rule) was acceptable in principle.  But the court decided that the rules and the immigration Directorate Instruction on family migration, which is the guidance referred to by entry-clearance officers, unlawfully failed to take proper account of the Secretary of State’s duty under section 55 of the Borders, Citizenship and immigration Act 2009 to have regard to the need to safeguard and promote the welfare of children, when making decisions which affected them. In addition, there were aspects of the instructions to entry clearance officers, in relation to the circumstances in which alternative sources of funding should or might be considered, which required revision to ensure that the decisions made by them were consistent with their duties under the Human Rights Act 1998. 

The Home Office has recently released a Statement of Change to the immigration rules relating to the minimum income threshold to make it easier for some families to meet the requirements.

As immigration solicitors in London, we regularly advise clients on the Minimum Income Rule, ensuring that if there is an Article 8 appeal present, we submit the application, so it has the best chance of being engaged if entry-clearance is refused.

The process the court’s will use when deciding whether an appeal should be granted on Article 8 grounds

In R (on the application of Razgar) v SSHD, the late Lord Bingham proposed a structured approach to Article 8 decision making by identifying the likely questions which would have to be answered by the court when a case was presented:

a)    Will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect for his private or (as the case may be) family life?

b)    If so, will such interference have consequences of such gravity as potentially to engage the operation of Article 8?

c)    If so, is such interference in accordance with the law?

d)    If so, is such interference 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?

e)    If so, is such interference proportionate to the legitimate public end sought to be achieved?

The need for a structured approach to Article 8 claims has been reiterated on many occasions; however, the courts have made clear that there can never be a formulaic approach to Human Rights’ appeals.

In EB (Kosovo) Lord Bingham observed that [emphasis added]:

“ ...the appellate immigration authority must make its own judgment and that judgment will be strongly influenced by the particular facts and circumstances of the particular case. The authority will, of course, take note of factors which have, or have not, weighed with the Strasbourg court. It will, for example, recognise that it will rarely be proportionate to uphold an order for removal of a spouse if there is a close and genuine bond with the other spouse and that spouse cannot reasonably be expected to follow the removed spouse to the country of removal, or if the effect of the order is to sever a genuine and subsisting relationship between parent and child. But cases will not ordinarily raise such stark choices, and there is in general no alternative to making a careful and informed evaluation of the facts of the particular case. The search for a hard-edged or bright-line rule to be applied to the generality of cases is incompatible with the difficult evaluative exercise which Article 8 requires.”

For this reason, expert legal advice must be obtained from a top immigration solicitor at a law firm to achieve the best result.  immigration appeals are notoriously complex; however, the team at OTS Solicitors has a strong record of accomplishment in  successfully appealing UK spouse visa refusals on Article 8 grounds.

OTS Solicitors is one of the most respected immigration law firms in London.  Our immigration team would be happy to talk to you about applying for a Spouse, Partner or Fiancé Visa and appealing a refusal on Article 8 grounds.

By making an appointment with one of our immigration solicitors, you can be assured of receiving some of the best legal advice available in the UK today. 

If you wish to discuss any of the points raised in this blog, please phone our London office on 0207 936 9960.



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