All You Need To Know About Human Rights Article 8 Appeals

By Oshin Shahiean of OTS Solicitors

“To deny people their Human Rights is to challenge their very humanity.” - Nelson Mandela

Following on from our recent article on A Brief Guide To Immigration Tribunal Appeals , this week’s blog explains the law surrounding Immigration appeals that engage Article 8 of the European Convention of Human Rights (ECHR).

Article 8 of the ECHR provides:

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.”

If an applicant can demonstrate a breach of their rights by the Home Office and the breach is unlawful by virtue of section 6 (1) of the Human Rights Act 1998, leave to enter or remain may well be granted.

Section 6 (1) of the Human Rights Act 1998 reads:

6 Acts of public authorities.

(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

Questions a judge should consider when examining an Article 8 appeal

The need for judges to apply a structured approach to considering Article 8 appeals in Immigration decisions has been reiterated many times.

In R (on the application of Razgar) v SSHD, the late Lord Bingham proposed the following structured approach to Article 8 decision making by identifying the likely questions which would have to be answered a First-tier Tribunal judge. These are:

• 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?
• If so, will such interference have consequences of such gravity as potentially to engage the operation of art 8?
• If so, is such interference in accordance with the law?
• 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?
• If so, is such interference proportionate to the legitimate public end sought to be achieved?

How family and private life is defined by the courts

One of the most contentious aspects of Article 8 appeals is establishing what is ‘private and family’ life for the purposes of the Convention. Unsurprisingly, the Home Office takes a rather draconian view of what constitutes family life, stating it cannot exist outside of the nuclear family, (a spouse and children under 18 years).

Family life is presumed to exists between husband and wives and minor children and the court must take into account the best interests of the child when embarking on its decision-making process. The situation regarding adult children is less certain. However, in the case of Singh & SSHD Sir Stanley Burnton, giving the judgment of the Court of Appeal, stated;

“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.”

The courts interpret the definition of private life broadly. It has been established that it includes a person’s “.. right to establish and to develop relationships with other human beings, especially in the emotional field for the development and fulfilment of one’s own personality” – (X. v Iceland (Application no. 6825/74)).

In Niemietz v Germany (Application no. 13710/88) the European Court of Human Rights commented that Article 8 private life is a very wide concept:

“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.”

Establishing whether interference in family and/or private life is proportionate

The first step in answering this question is to decide whether the Home Office, in making its decision, was acting within the qualifying factors mentioned in Article 8 (2). For example, if a non-EEA resident partner of a British citizen is refused a family visa, the court must decide whether or not this was done:

• in the interests of national security, public safety or the economic well-being of the country, or
• for the prevention of disorder or crime, or
• for the protection of health or morals, or
• for the protection of the rights and freedoms of others

The courts have affirmed that in all but a few cases, the answer to this question will be yes. This includes any arguments around controlling Immigration. Although Immigration control is not in itself a legitimate aim mentioned in Article 8(2), the Court of Appeal has held that 'the maintenance of a generally applicable Immigration policy is, albeit indirectly, a legitimate aim for the purposes of Article 8(2)' as uncontrolled Immigration impacts the economic wellbeing of the country (including the costs to the tax payer of social security benefits, NHS care and education of migrants who come to the UK as a result).”

The court will then consider, having established that the Home Office acted in accordance with the qualifying criteria set out in Article 8 (2), whether or not the measures taken were ‘proportionate’.

In Huang v SSHD; Kashmiri v SSHD the House of Lords stated that the 'ultimate question' in an Article 8 case (for both private and family life) was:

“Whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by Article 8. If the answer to this question is affirmative, the refusal is unlawful and the authority must so decide.”

However, this ruling must be read in conjunction with section 117B(5) of the Nationality Immigration and Asylum Act 2002. This section provides that, for a court or tribunal making a proportionality assessment ‘little weight should be given to a private life established by a person at a time when their Immigration status is precarious’. Both the Home Office, and latterly the Upper Tribunal have interpreted ‘precarious’ widely, stating it includes, for example, persons with limited leave to enter or remain.

An example of how narrowly the principle of proportionality is applied to private life can be seen in the case of Alam (s 85A—commencement--Article 8) Bangladesh. The tribunal considered a decision where the private life being interfered with was the study for an ACCA accountancy qualification. Although Article 8 was engaged, it held that the interference with the appellant's desire to continue after four years of studies was not sufficient to outweigh their failure to meet the requirements of the Immigration Rules. This decision and the reasoning behind it was upheld by the Supreme Court.

However, appealing on the grounds of breach of private life can still be successful, especially where the appellant is in work. For example, in R (Vellore) v SSHD an Indian national, Mr Vellore was refused Indefinite Leave to Remain in the work permit category due to being out of the UK for more than four months in one go during the five-year qualifying period, which contravened the Home Office's then existing policy on continuous lawful residence. The appellant had to leave the UK to recuperate following a motorbike accident. The Immigration Judge had found that he had built up a private life in the UK through living and working here for around five years, he had been away from the UK longer than intended through circumstances totally out of his control and he would have complied with the rules and the interpretation of the rules if he had returned as intended. As such, it would be disproportionate for him to return to India and resume his private life there.

Solicitor’s role in ensuring Article 8 claims can be made in Immigration appeals

Appeals based on Article 8 grounds are one of the most complex elements of UK immigration law. An experienced Immigration solicitor will ensure an application to the Home Office will leave room for an Article 8 appeal to be made if the application is refused. Given that the only avenues open to Points Based System appeals are via Human Rights or refugee grounds, it is imperative that you engage a good solicitor to make the application and move swiftly with an appeal if your visa or Indefinite Leave to Remain is refused.

OTS Solicitors, based in the heart of London, specialises in Immigration law. Our expert Immigration team is regarded as one of the best in the UK. If you need legal advice with regards to appealing a Home Office decision on Human Rights grounds, please phone our office on 0203 959 9123 to make an appointment.