Could Operating A Business Qualify For Private Life Under Article 8?

Entrepreneur

Onwuje v Secretary of State for the Home Department [2018] EWCA Civ 331

In a recent case, the Court of Appeal held that running a business may amount to private life under Article 8 of the European Convention on human rights.

Business migrants in the UK can now work with their immigration solicitor to make the best use of this new ruling.

The facts of the Onwuie decision make for tough reading, mainly on the grounds that his appeal ultimately failed and much of the time and money he invested developing his business has gone to waste.  However, it is the Court of Appeals acknowledgment that running a business can engage Article 8, which is worth exploring.

The facts of the case

The appellant was a Nigerian national who had come to the UK as a student.  His wife joined him as a dependent and they went on to have three children.

After his Leave To Remain expired, he applied for a Tier 1 Entrepreneur Visa, based on an employment agency he had started which serviced the health and care sector.

The appellant’s application for an Entrepreneur Visa was rejected because there were mistakes in the documents required to show he had access to the necessary investment funds.  An appeal was made to the First-tier Tribunal, before which the appellant admitted that he was unable to satisfy the Immigration Rules because the issues with the documents did not fall within para.276ADE or Appendix FM.  However, the Tribunal accepted that the appellant was entitled to Leave To Remain under Article 8, outside the rules, on the basis that, if he had to leave, his business would close.   The Secretary of State successfully appealed to the Upper Tribunal and the appellant was given leave to appeal to the Court of Appeal.

The Court of Appeal’s decision

The Court of Appeal stated that regarding family life under Article 8, as the entire family would be removed from the UK together, no interference could be established.

As to whether Article 8 was engaged due to private life, Lord Justice Underhill, who delivered the judgment of the court, stated:

“As regards private life, the position has arguably been unnecessarily complicated by the emphasis placed by the FTT on the Appellant’s involvement with his business. Mr Mustafa made it clear that the Appellant had always relied also on conventional private life grounds. In his witness statement in the FTT he gave evidence, albeit in fairly general terms, about the friendships and social life that he and his wife and children had developed in their local community and how fully integrated they were, particularly through church and school. It is fair to say that those general statements were not supported by very much in the way of independent evidence: the letters from the Appellant’s church and his daughter’s school are perfunctory. Nevertheless, the general proposition is entirely plausible. I would therefore be prepared to hold that the FTT was entitled to find that the right to respect for the private lives of the appellant and his wife and children was engaged by their liability to removal, even without any reference to his business”.

Lord Justice Underhill then turned to the reasoning laid out in Niemietz v Germany (1993) 16 EHRR 97, where the European Court of human rights stated:

“The Court does not consider it possible or necessary to attempt an exhaustive definition of the notion of 'private life'. However, it would be too restrictive to limit the notion to an 'inner circle' in which the individual may live his own personal life as he chooses and to exclude therefrom entirely the outside world not encompassed within that circle. Respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings. There appears, furthermore, to be no reason of principle why this understanding of the notion of ‘private life’ should be taken to exclude activities of a professional or business nature since it is, after all, in the course of their working lives that the majority of people have a significant, if not the greatest, opportunity of developing relationships with the outside world.”

Acknowledging the above comment, Lord Justice Underhill stated he had “no difficulty” agreeing that the owning and operating of a business could constitute private life for the purposes of Article 8.  However, Lord Justice Underhill went on to say that there was no compelling evidence that the appellant’s business was essential to his identity.  Instead, the witness statements focused more on what benefits the business could bring to the local community and its clients.

The issue of proportionality was then discussed.  The court stated the starting point was paragraph 276ADE of the Immigration Rules sets out the Secretary of State’s judgment of the minimum length of lawful residence in the UK necessary to support an application for Leave To Remain on private life grounds.  The appellant had clearly established he could not meet these grounds.  Lord Justice Underhill went on to emphasise that it is now well established compelling reasons that require Leave To Remain outside the Immigration Rules will only be present in exceptional cases.

No such compelling reasons could be found by the court in this case.  The appellant built up his business at a time his immigration status, although not unlawful, was precarious.  For example, the business was not even started before the expiry of his leave on 30th September 2013.  The closure of the business, although upsetting and resulting in the loss of two jobs, it would not cause serious damage or disruption to the wider community.

Therefore, the appeal was dismissed.

What this decision means for other migrants

This decision is important as it provides a possible human rights claim for Tier 1 Entrepreneur Visa applicants and other migrants who are applying for entry into the UK via a business visa.

To achieve the best result in such cases, it is crucial the immigration solicitor managing the matter emphasises the importance of the business to the community and the importance of the venture to the private life of the applicant.

OTS Solicitors is one of the most respected immigration law firms in London and is a Legal 500 leading firm.  By making an appointment with one of our Business immigration solicitors, you can be assured of receiving some of the best legal advice available in the UK today.  Contact us on 0203 959 9123 to speak to one of our immigration consultants.

Please note, this article cannot be taken as legal advice and is for information purposes only.  To provide legal advice, we need to receive your formal instructions.

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