Using Human Rights Act 1998 to regularise your status in UK

The Human Rights Act 1998 gives further legal effect in the UK to the fundamental rights and freedoms contained in the European Convention on Human Rights. These rights not only impact matters of life and death, they also affect the rights you have in your everyday life: what you can say and do, your beliefs, your right to a fair trial and other similar basic entitlements.

Most rights have limits to ensure that they do not unfairly damage other people’s rights. However, certain rights – such as the right not to be tortured – can never be limited by a court or anybody else. You have the responsibility to respect other people’s rights, and they must respect yours.

Your human rights are:

– the right to life
– freedom from torture and degrading treatment
– freedom from slavery and forced labour
– the right to liberty
– the right to a fair trial
– the right not to be punished for something that wasn’t a crime when you did it
– the right to respect for private and family life
– freedom of thought, conscience and religion, and freedom to express your beliefs
– freedom of expression
– freedom of assembly and association
– the right to marry and to start a family
– the right not to be discriminated against in respect of these rights and freedoms
– the right to peaceful enjoyment of your property
– the right to an education
– the right to participate in free elections
– the right not to be subjected to the death penalty

If any of these rights and freedoms are breached, you have a right to an effective solution in law, even if the breach was by someone in authority, for example, a police officer.

Human Rights law plays an integral part in UK Immigration law. Human Rights law can be argued on its own merits in an Immigration law application. This article will focus on Article 8 of the ECHR 1998, which is commonly relied upon when arguing that refusing a person the right to stay in the UK or removing them from the UK, will constitute a breach of their human rights. This is what Article 8 states:

ARTICLE: 8 RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE

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.

Case Examples

Example 1

Benjamin is a 24 year old Ghanaian man who has been convicted of Aggravated Burglary and is sentenced to two years imprisonment. He has no legal status in the UK as he entered illegally and overstayed. He has a 1 year old daughter with his British born girlfriend and no other family in the UK. He has been in the UK since the age of 17 and this is his first conviction. He was working as a Chef before he was arrested and was paying taxes and living with his British girlfriend and daughter, as a family. He has now been served with a deportation order to return to Ghana on completion of his sentence but he does not want to return as his girlfriend and daughter are in the UK and they cannot move abroad.

What can Benjamin do? Benjamin can raise arguments under Article 8 of the ECHR 1998, that not only would his human rights be affected under Article 8, but so would his girlfriend’s and their child’s if he was not granted legal status to reside in the UK. Benjamin can argue that he has been in the UK since he was a minor and that he may not have any family ties in Ghana but only in the UK, with his girlfriend and child.

Furthermore, as this was his first offence, it will be important to look at the Probation Officer’s report on whether they believe Benjamin will re-offend or not, and if there is a low likelihood of re-offending, then this will be a favourable factor in arguing against deportation, in that he can argue he has learnt the error of his way and his presence in the UK will be conducive to the public good as he will intend to work, pay tax contributions and live as a family man.

Example 2

A Jamaican woman by the name Loretta is an overstayer with a 5 year old son called Winston who was born in the UK, but he is not British. However, Loretta wants her son to grow up in the UK as he has spent his whole life here, and she has been in the UK for the past 8 years. The child has cousins, aunts and uncles and other family relatives from his father’s side, who do have permanent legal status in the UK. The woman wonders if she can get legal status for and her son.

What can be done: This case could seek to argue the human rights of Winston as he was born in the UK and has grown up in the UK, and this is the only lifestyle he knows. In December 2008, the “7 year concession” was removed from the UK- this was where families who had been in the UK with a child who had also been in the  country for more than 7 years could automatically apply for indefinite leave to remain.

The current law requires the Secretary of State to consider whether removing Winston (and his mother who would also make a claim to remain based on arguing that she has established a private and family life in the UK during her 8 years residence) would be a breach of Winston’s and Loretta’s article 8 human rights. The following questions must be asked by the Secretary of State when considering removal against a child:
a) Whether a child had formed a protected “private life” and whether removal would interfere with his private life
b) Whether the interference (by way of removal) was in accordance with the law
c) Whether the interference (by way of removal) was proportionate

Example 3

Clive has been in the UK for 7 years. He came to the UK on a student visa but was unable to complete his studies and stopped studying but did not return back to Kenya because he wanted to work and earn money as he had to help finance his family in Kenya. Clive has a girlfriend in the UK with a home. He wants to know if he can make an application to remain in the UK on the basis of his being in the UK for a lengthy period of time and his life with his girlfriend.

What can Clive do? Clive could consider making an application for Discretionary Leave  to remain in the UK and he would need to also argue his right to private life based on his lengthy residence in the UK. However, he would be limited in arguing his private life under article 8 as he has no family life in that he is not married to his girlfriend and has not been living with her. Clive should also consider that if the relationship is serious enough for both, and he and his girlfriend want to marry, then he can return to Kenya to marry his British girlfriend and then apply for a spouse visa from the British Embassy in Kenya to return to the UK. Though Clive has overstayed in the UK, the British Embassy will not necessarily refuse him a visa to join his spouse in the UK so long as he satisfies the other immigration criteria to successfully obtain a spouse visa.

Home Office’s current position

The Home Office are currently indicating a hard line approach. When assessing applications under Article 8, they will also consider whether there are any “exceptional, compassionate and compelling circumstances”. The Home Office will consider factors such as the length of time the person was married before the breakdown, the length of time the person has been resident in the UK, any children the person has and their legal status, the proportion of time spent abroad before entering the UK and whether there are any children of the marriage.

They will seek to decide whether a partner and any children can move aboard to the person’s home country if they are refused leave and if not, why not.

Applications made under Article 8 ECHR 1998 can be complex, lengthy and difficult. If you think you have a case worth putting forward under the basis of Article 8 ECHR 1998, you should seek immigration advice from specialist Immigration lawyers who can advise you fully on the pros/cons of putting forward such a case.

By Raheela Hussain, Principal Solicitor of Greenfields Solicitors

The above article is meant to be relied upon as an informative article and in no way constitutes legal advice. For legal advice regarding your case, please contact Greenfields Solicitors on 020 8884 1166 for a Consultation with a Solicitor.