Article 8 and family life in the UK

Article 8 of the European Convention on Human Rights provides as follows:

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 freedom of others.

Many of the readers will undoubtedly be aware that an Article 8 claim may be raised to avoid removal from the United Kingdom on the basis that doing so would infringe on one rights under this article; i.e. the right to private and family life. However, the UK Border Agency normally argues that: in order to protect the wider interests and rights of the public it is vital to maintain effective control of the UK’s borders and in pursuit of that aim, it is believed that any interference with your private and family life would not be disproportionate and in accordance with the legitimate aim of maintaining effective immigration control.

The crucial question therefore is: under what circumstances may the UK Border Agency consider interference with your right to private and family life in the UK to be disproportionate? This may best be illustrated by different scenarios.

a. A has been in the UK for sometime and is now in a relationship with B who has Indefinite Leave to Remain in the UK. A has now claimed asylum and raised Article 8 as part of her claim. Under these circumstances, the Home Office normally argues that although there is evidence of family life, interference will not be disproportionate as there is nothing to stop this family life being enjoyed elsewhere. (There may be a different outcome where the ILR is on the basis of an asylum claim).

b. A has claimed asylum in the UK and has been refused. He has now made a fresh claim for asylum and his fresh evidence is mainly on the basis of a change in his personal circumstances in that he is now in a relationship with B, a recognised refugee from his country of origin. Under these circumstances if the relationship is found to be genuine, it is arguable that removal of A may be disproportionate as his partner will not be able to join him as she is a refugee from their country of origin.

c. A has been extending her student visa for the past six years but on the last occasion her visa extension was refused as she could not meet the maintenance/funding requirement. However, she is currently in a relationship with B, a British national and this relationship has been going on for more than two years and they have been living together as husband and wife in a relationship akin to marriage.

On the basis of the recent Court of Appeal judgment that has already been commented upon by my learned colleagues, consideration ought to be given to this applicant’s Article 8 rights. It will, therefore, be arguable that; although technically nothing would bar the British partner from accompanying her to her home country; there may be insurmountable obstacles in expecting the British partner to leave the UK to a place where there may be economic or political problems.

d. A has claimed asylum and both her husband and children are dependant on her claim. Under these circumstances, the Home Office have argued that since the whole family will be returned as a single family unit, therefore even if there will be interference with family life, this would be not be disproportionate as they will be able to continue their family life in their country of origin. Consequently, it has been argued that these circumstances may not engage the UK’s obligations under Article 8 of the ECHR.

Following from the above scenarios, it is apparent that the mere fact that you either have relatives or immediate family members in the UK does not on its own mean that Article 8 is engaged. In certain circumstances, it has to be shown that there are special elements of dependency and that the relationship goes beyond the normal emotional ties; e.g. caring for a sick relative settled in the UK; showing that there are insurmountable obstacles that bars a partner from accompanying you to your home country. This is mainly the case because the Home Office usually argues that Article 8 does not entail a general obligation for the State to respect an immigrant’s choice of the country of residence and to maintain private and family life in its territory.

Therefore, whilst the recent ruling in SSHD v Pankina & Others; (held inter-alia that Article 8 of the ECHR does have application in the Points-Based System) is celebrated, it is safe to suggest that each case will depend on its own merits just like in any other legal scenario.

Private and family life will still be given anxious scrutiny in order to establish whether it reaches the threshold that would engaged the United Kingdom’s obligations under Article 8 of the ECHR. It is therefore not enough just to indicate that you have brothers and sisters in the UK. You ought to go further and show that the nature of the relationships extends to more than normal emotional ties, especially where this involves adult siblings.

Further, it is not enough to show that you are in a relationship; you have to show why your partner cannot be expected to accompany you to your home country. As for a family unit being returned to their home country a realistic challenge may be on the basis of length of stay and strength of connections with the United Kingdom. Be that as it may readers must always ensure that their Article 8 rights are properly ventilated as they may be their only avenue to avoiding removal from the United Kingdom.

George Tizirai-Chapwanya is a solicitor with Bake & Co Solicitors. He can be contacted on gtchapwanya@bakesolicitors.co.uk or visit Bake & Co Solicitors’ website at www.bakesolicitors.co.uk; 0121 616 5025 or 07815958475

Disclaimer: This article only provides general information on immigration law. It is not intended to replace the advice or services of a Solicitor. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. The writer will not accept any liability for any claims or inconvenience as a result of use of this information