Human Rights – Family and Private Life under Article 8


Family Life

If you do not meet the immigration rules for example you have overstayed your leave or do not meet the financial requirements under Appendix FM, you may be able to be granted leave to remain in the United Kingdom if you have a child in the UK who is either a British citizen or has lived in the UK for 7 years and it would be unreasonable for the child to leave the United Kingdom. Alternatively, you may also be granted leave if you have a genuine and subsisting relationship with a settled partner who is in the UK and there are insurmountable obstacles for you or your partner continuing outside the UK.


What is unreasonable?

Deciding whether it is unreasonable for a qualifying child to leave the UK is a test undertaken by the Home Office officials. The Home Office takes the view that if a child’s parents are both expected to leave the UK, the child is normally expected to leave with them unless there is evidence that it would not be reasonable. However, it is important that the Home Office take all relevant factors into account requiring them to undertake an assessment in the round. The Home Office guidance is geared towards finding an adverse finding. Simply put it the attitude adopted is if the parents are to leave then the child must follow as this would be in the child's best interest unless there are other reasons that make it unreasonable. It is therefore imperative that you receive the best representation to address the question of unreasonableness. Recently in NA (Bangladesh), v Secretary of State for the Home Department [2021] EWCA Civ 953 the Court ruled that a child being in the UK for 7 years or more did not create a presumption in favor of the child, and thus their parents, being granted leave to remain. Therefore, the Court of Appeal concluded that the starting point, in where both parents do not have leave to remain, is that it will be reasonable to expect the child to leave the UK with their parents. However, the Court of Appeal has emphasized that this is no more than a starting point and that it remains necessary in every case to evaluate all the circumstances in order to establish whether it would be reasonable to expect the child to leave the UK, with his or her parents, which is the approach taken by the Supreme Court’s decision in KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53.


What constitutes insurmountable obstacles?

In the Home Office guidance, insurmountable obstacles are defined as ‘very significant difficulties which would be faced by the applicant or their partner in continuing their family life together outside the UK and which could not be overcome or would entail very serious hardship for the applicant or their partner.’

This is a very difficult hurdle to overcome and is much more stringent than the unreasonableness test. The Home Office guidance makes it clear that a significant degree of hardship or inconvenience does not amount to an insurmountable obstacle. ECHR Article 8 does not oblige the UK to accept the choice of a couple as to which country they would prefer to reside in’, Each individual case is decided on its own merit. No one case is the same and careful and thoughtful preparation would give a maximin chance of success.

Private Life

You can only apply on the basis of your private life if you’re already living in the UK. You must be able to prove that you are either under 18 and you’ve lived in the UK continuously for at least 7 years and it would be unreasonable to expect you to leave the UK, between 18 and 24 and you’ve lived continuously in the UK for more than half your life, 18 or over, have spent less than 20 years in the UK and would have very significant obstacles to your integration into the country to which you would have to go if required to leave the UK or 25 or over and you’ve been in the UK continuously for 20 years

In Kamara v Secretary of State for the Home Department [2016] 4 WLR 152 the court provided some guidance on what is ‘very significant obstacles to integration in where ‘The idea of "integration" calls for a broad evaluative judgment to be made as to whether the individual will be enough of an insider in terms of understanding how life in the society in that other country is carried on and a capacity to participate in it, so as to have a reasonable opportunity to be accepted there, to be able to operate on a day-to-day basis in that society and to build up within a reasonable time a variety of human relationships to give substance to the individual's private or family life." More recently, this was applied by the Court of Appeal in the case of Lowe v The Secretary of State for the Home Department [2021] EWCA Civ 62 (25 January 2021) in which the Court of Appeal restored the decision of the FTT allowing the Appellant’s appeal against deportation on the basis that there were very significant obstacles to his integration in Jamaica.


Exceptional Circumstances

The Home Office must consider whether there are exceptional circumstances which could or would render refusal of entry clearance or limited leave to remain a breach of ECHR Article 8 (the right to respect for private and family life) because refusal could or would result in unjustifiably harsh consequences for the applicant, their partner or a relevant child, or would result in unjustifiably harsh consequences for another family member whose Article 8 rights it is evident from the application would be affected by a refusal. The underlying question ….. is whether the harshness which the deportation will cause for the partner and/or child is of a sufficiently elevated degree to outweigh that public interest HA (Iraq) [2020] EWCA Civ 1176.

The Home Office has stated in their guidance that ‘Exceptional’ does not mean ‘unusual’ or ‘unique’. Whilst all cases are to some extent unique, those unique factors do not generally render them exceptional. For example, a case is not exceptional just because the criteria set out in the Immigration Rules have been missed by a small margin. Instead, ‘exceptional’ means circumstances in which refusal of the application could or would result in unjustifiably harsh consequences for the individual or their family such that refusal would not be proportionate under Article 8. ‘Unjustifiably harsh consequences’ are ones that involve a harsh outcome(s) for the applicant or their family which is not justified by the public interest, including in maintaining effective immigration controls, preventing burdens on the taxpayer, promoting integration and protecting the public and the rights and freedoms of others.

These applications are rather complex and require scrutiny of your circumstances together with strong evidence and representation to be made on your behalf to achieve a successful outcome. In one of the recent cases, the Court of Appeal observed that ‘the Appellant may well have a good case for leave to remain outside the Rules, but she did not in her application give the Secretary of State the material with which to make an informed judgment. If she applies again, dealing fully with the circumstances of her case, the Secretary of State will no doubt give the application careful consideration’, Parveen v Secretary of State for the Home Department [2018] EWCA Civ 932 The applicant was legally represented and the Court of Appeal also observed by stating that ‘this Court sees too many cases in which applicants for leave or their advisers – particularly in cases depending on article 8 outside the Rules – devote their energies to setting out extracts from the case-law rather than to demonstrating a compelling case based on the details of the applicant's particular circumstances. The latter exercise may require more work, but it is what the Secretary of State, and if necessary, the Tribunal, will be more concerned with. Cases of this kind generally turn on their facts, and the applicable law does not require elaborate exposition.

Our focus will be to prepare your case efficiently and effectively demonstrating a compelling case based on your individual circumstances. Where necessary social or psychiatric reports will be commissioned, and independent evidence gathered from third parties that will allow the Home Office or the Tribunal to make an informed decision. If you are successful, you will be granted leave under a 10-year route to settlement. This means that after 10 years of lawful residence in the United Kingdom you will be able to apply for indefinite leave to remain, provide you meet the Immigration Rules at the time of the application.