The right to reside in the UK on the basis of Article 8

The right to reside in the UK on the basis of Article 8

Anyone who has a successful and stable private and family life in any of the Council of Europe countries, in particular in the UK, and can produce the relevant evidence, can only claim a right to remain on that basis. It does not matter whether or not the applicant complies with the domestic immigration laws of the UK. Applicants can be:

– Persons who are in the UK on overstayed visas
– illegal immigrants
– asylum seekers
– Rejected asylum seekers
– Anyone who cannot get leave to remain in the UK under UK immigration rules

Criteria for Article 8 applications

Family life can be based on the following relationships.

Immediate family members:

– husband/wife or partners in a same-sex marriage

– Partners in an unregistered (including same-sex) marriage. Unlike immigration rules, such unions do not require proof of two years of cohabitation

– parent/child/adopted child

Broader familial relationship:

  • – grandparents/grandchildren
  • – uncles/aunts
  • – nephews
  • – parents/adult children
  • – and some others.

Family life can be considered proven among close relatives if there are minor children in the family, although even in this case it is necessary to present evidence of close kinship. With regard to broader kinship and adult relationships, it is necessary to prove the strength of the applicants’ emotional ties of dependence on each other.

The UK Home Office generally uses the following five criteria to assess whether a person’s removal from the country would be considered a violation of their Article 8 rights:

  1. Does the applicant have a family or private life in the UK?
  2. would such an expulsion be considered an interference with family life with consequences serious enough to attract Article 8?
  3. was the interference with family life lawful?
  4. Was such interference for one of the purposes permitted by Article 8(2)?
  5. Was the interference proportionate to the authorised purposes?

If the applicant provides a full picture of private and/or family life, supported by evidence, demonstrates the possible consequences of the removal, and proves that the removal would cause serious harm to family/private life, the applicant can on that basis be granted a Discretionary Leave to Remain, which is normally granted for a period of three years.

It should always be remembered that each case is different. The Home Office can make either a positive or negative decision on a case based on subjective considerations. Moreover, even on two identical applications, decisions may be reversed, at the discretion of the officer handling each case.

Applicants whose visa applications are refused will be given full rights of appeal, provided that no other leave to remain in the UK will have been granted at the time of the decision. In these appeals, applicants are also allowed to use new evidence to challenge the Home Office’s decision. The applicant will have 10 working days from the date of service of the decision to appeal the decision.

 

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