Human Rights Claims and UK Standard Visitor Visa Refusals

Stamp saying Visa Refused

For the citizens of many countries, the only way they can enter the UK is by obtaining a UK Standard Visitor Visa.

To be eligible to enter the UK on the Standard Visitor Visa route you must satisfy the Entry Clearance Officers (ECO) that you:

  • will leave the UK at the end of your visit
  • will not live in the UK for extended periods through frequent or successive visits or make the UK your main home
  • will not seek Employment, marriage or try and apply for a course of study
  • will not deliberately seek medical treatment

If you wish to undertake any of the above activities, you will need to consult an experienced immigration solicitor to receive the best advice as to the entry route you should apply on to come to the UK.

 A genuine reason to visit

To obtain a UK Standard Visitor Visa, you must show ECO that you have a genuine reason for visiting the country.

Previous case law indicates that the following factors will be taken into consideration when assessing genuineness:

  • the periods of time spent in the UK against time spent in your country of residence
  • the expressed purpose of your visit
  • what you have done in the past and intend to do in the future, together with the length of time that has elapsed since previous visits
  • the links you retain with your country of residence
  • if you have other family members in the country of residence
  • whether you are visiting a relative and undertaking family-related activities, such as visiting your adult children and helping in the house or providing child care
  • whether the reality of the arrangement between you and your host in the UK is that the latter is a resident in the UK and intends to be for the foreseeable future
  • whether you are no more than a visitor to their country of residence and are using returns home solely as the means of gaining re-admission to the UK
  • any reasons for a longer visit than your previously established pattern (within the 6-month duration of a single permitted visit), such as a family emergency or serious medical condition; however, departure from the usual pattern will not be regarded as taking up residence unless supporting evidence confirms this suspicion

Your immigration lawyer will be able to provide the best advice on ensuring your application meets the genuineness test.

The right of appeal if the application is refused

If you make an application for a UK Standard Visitor Visa and it is refused, you will only have a right of appeal if the refusal of the application also constituted a refusal of a human rights claim.

For example, as in the case of Abbasi and another (visits-bereavement-Article 8) [2015] UKUT 463 (IAC), a proposed visit to mourn the death of a family member can engage aspects of both private and family life under Article 8 of the European Convention of human rights (ECHR).

The Home Office has given ECOs detailed guidance on whether or not a possible human rights claim will exist when assessing an applicant’s suitability for a Standard Visitor Visa, requiring four factors to be considered:

  1. Does the applicant say it is a human rights claim? –  Unfortunately, just because you say there is a human rights claim does not mean there is one.  You will have to produce evidence to back up your assertion, otherwise, your refusal will be issued without the right of appeal.
  2. Is there an implied human rights claim?human rights claims can be implied as well as expressed.   ECOs are instructed to consider the material provided in the application to determine the applicant's reasons for visiting the UK and whether these are possibly a human rights claim.  The view stated in the guidance is that visit applications do not generally engage human rights and that a human rights claim should not be readily inferred. If no implied human rights claim has been made, any refusal would be issued without a right of appeal. If an implied human rights claim has been made, ECOs are instructed to go on to consider question 3.
  3. Are the matters raised capable of engaging human rights? - The starting point for any ECO is that a visit does not generally engage human rights. If a family based claim is made, the relationship in question must be one that is capable of engaging the right to respect for family life. The guidance states that the only family relationships that may engage Article 8 of the ECHR in Standard Visitor applications are spouse/partner, parent and child.  However, in case law, First Tier Tribunal has held that the relationship of grandparent and child can engage Article 8 (Kaur (visit appeals; Article 8) [2015] UKUT 487 (IAC).
  4. Does the claimant have any prospect of successfully appealing on human rights grounds? - An ECO will consider whether the claim has any prospect of success by considering the evidence submitted with the application. The standard of proof is the balance of probabilities. When considering an Article 8 claim, the ECO will consider the quality of the family life, whether it can be maintained by other means, e.g. visits to the applicant's home country, the effect of refusing the visit visa and whether the interference with the applicant's human rights is proportionate. When considering an Article 14 claim, in addition to another engaged human right, an ECO must determine on the basis of the material submitted by the applicant whether refusal of the entry clearance would be discriminatory on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

Only if all four criteria are met will the ECO allow a right of appeal when they decline the application for a Standard Visitor Visa.  If the right of appeal on human rights grounds is not granted, the only recourse the applicant will have is via judicial review.

In summary

Being denied entry into Britain on a Standard Visitor Visa can have devastating implications for family life.  Parents settled in the UK who have young children often rely on parents coming over for a few months of the year to offer a helping hand.  Likewise, elderly people need to see their children, not only for reasons relating to health and care, but for simple happiness and quality of life.

If you believe your application for a UK Standard Visit Visa has a right of appeal on human rights grounds if it is refused, contact an experienced immigration solicitor to receive the best legal advice on how to challenge the ECO decision.

OTS Solicitors is one of the most respected immigration law firms in London.  Our immigration team dealing with Standard Visitor Visas comprises of Smit Kumar, Hans Sok Appadu and Maryem Ahmed, all of whom would be happy to talk to you about appealing a refusal on human rights 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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