Article 8 of the ECHR is a key provision in UK immigration law and one that the best solicitors are familiar with. Because appeals are no longer available for most points-based system immigration applications, appealing under Article 8’s right to private and family life has become one of the only avenues available to achieve a success result in many immigration cases.
There have been many successful cases decided under the family life provisions of Article 8. But what has led to the courts awarding a positive decision to the immigrants? This article endeavours to unpick how Article 8 is interpreted by the UK courts to see what it takes for an immigration lawyer to achieve the best results for their clients.
What does Article 8 state?
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.
The provision is divided into two parts. The first part sets out the rights that all individuals enjoy under Article 8. The second makes clear that these rights, although strong, are not absolute, and the State can interfere with the right to private and family life in certain circumstances.
What constitutes private life under Article 8?
The meaning of ‘private life’ under Article 8 is broad. Judges have agreed that it can extend to features which are integral to a person’s identity or ability to function socially as a person.
The boundaries between private and family life can be fluid, and one can be present without the other. In AA v United Kingdom application no 8000/08  ECHR 1345 the court stated, “it is not necessary to decide the question [whether family life applies] given that, as 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…”
Private life is also said to extend to personal development and the right to establish and develop relationships with the outside world.
What is the definition of family life under Article 8?
Regardless of the relationship, there is no presumption that family life does or does not exist. The courts have made clear that it is not restricted to spouses and minor children. It is a sensitive question that is will turn on the facts of the case and the close personal ties of the parties involved.
The Home Office accepts that family life will usually be found between spouses and civil partners and may exist between unmarried and same-sex partners if the relationship is sufficiently stable.
When it comes to adult children, in the Court of Appeal case of in Singh v Secretary of State for the Home Department, Sir Stanley Burnton stated:
“It seems to me that adult children (male or female) who are young students, from most backgrounds, usually continue to form an important part of the family in which they have grown up. They attend their courses and gravitate to their homes during the holidays, and upon graduation, while they seek to "make their own way" in the world. Such a child is very much part of the on-going family unit and, until such a child does fly the nest, his or her belonging to the family is as strong as ever. The proportionality of interference with the family rights of the various family members should receive, I think, careful consideration in individual cases where this type of issue arises.”
He went on to say:
“The love and affection between an adult and his parents or siblings will not of itself justify a finding of a family life. There has to be something more. A young adult living with his parents or siblings will normally have a family life to be respected under Article 8. A child enjoying a family life with his parents does not suddenly cease to have a family life at midnight as he turns 18 years of age. On the other hand, a young adult living independently of his parents may well not have a family life for the purposes of Article 8.”
Those applying for the Adult Dependent Relative visa often have to rely on the family life provision under Article 8, as entry under this route is notoriously difficult.
Lord Justice Sedley stated in S v United Kingdom  40 DR 196, at 198. Sedley LJ, adopting this approach, stated in :
“Neither blood ties nor the concern and affection that ordinarily go with them are, by themselves or together, in my judgment enough to constitute family life. Most of us have close relations with whom we are extremely fond and whom we visit, or who visit us, from time to time; but none of us would say on those grounds alone that we have a family life with them in any sense capable of coming within the meaning and purpose of Article 8.”
Lord Justice Arden went on to add:
“Because there is no presumption of family life, in my judgement a family life is not established between an adult child and his surviving parent or other siblings unless something more exists than normal emotional ties. Such ties might exist if the appellant were dependent on his family or vice versa. It is not, however, essential that the members of the family should be in the same country.”
In the case of Dasgupta (error of law – proportionality – correct approach), the Upper Tribunal had to rule whether family life arose between an adult daughter and her 85-year-old mother. The court ruled that the scope of Article 8 was elastic enough to bypass the rules set out for the Adult Dependent Visa which provides hope to the huge number of people settled in the UK who have elderly parents overseas.
The first step to making a successful case under family or private life principles is to ensure your points-based system application provides that you can make an Article 8 appeal if you are refused. The best immigration lawyers will ensure that when submitting your application, the ability to make an appeal under Article 8 will be available if your circumstances allow for it.
The issue of proportionality has been discussed in previous blogs.
Article 8 cases are complex, requiring expert legal advice from experienced immigration solicitors and barristers. However, there are examples of successful outcomes coming out regularly through the courts, showing that British judges take the principles of the right to private and family life seriously.
OTS Solicitors is one of the most respected immigration law firms in London. Our immigration team dealing with Article 8 appeals comprises of Smit Kumar, Hans Sok Appadu, and Maryem Ahmed, all of whom would be happy to discuss your situation with you.
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 0203 959 9123.
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Posted on: Thursday, 11 May, 2017