Human Rights and Immigration: Can I apply to stay in the UK based on my human rights?
Human Rights Day marks the anniversary of the adoption of the Universal Declaration of Human Rights, reminding us that principles such as respect for private and family life are not just legal concepts but fundamental values that shape just and humane societies.
Here, we look at how Article 8 can become relevant in UK immigration applications, and how individuals may be able to stay in the UK on the basis of their human rights.
The use of Article 8 in immigration applications
Article 8 of the European Convention on Human Rights (ECHR) is a crucial provision for individuals seeking to remain in the UK by way of their right to respect for private and family life. In immigration matters, Article 8 is often raised when an individual cannot satisfy the requirements of the main immigration categories but can demonstrate compelling reasons to remain in the UK due to their family connections or established private life. The Home Office has incorporated aspects of Article 8 into the Immigration Rules, particularly through Appendix FM, which deals with family members, and the private life route, which provides an avenue for individuals who have built a life in the UK over a significant period.
Despite these provisions, there are circumstances where an applicant may not meet the specific criteria set out in Appendix FM or the private life route. In such cases, it is still possible to apply for leave to remain outside the Immigration Rules, relying on the wider principles of Article 8. This approach allows for a case-by-case assessment regarding whether removal from the UK would amount to a disproportionate interference with an individual’s right to respect for private and family life.
Understanding how Article 8 interacts with the Immigration Rules is therefore essential for those seeking to remain in the UK on human rights grounds. Below, we look at a couple of scenarios to explore this further.
Scenario 1: I want to apply for a spouse visa to stay in the UK, but I do not meet the financial requirements. Do I have any options?
Many applicants struggle to meet the financial requirements for spouse applications, particularly since the minimum income requirement increased from £18,600 to £29,000 in April 2024 for new applicants.
Imagine you are living in the UK with your British wife, who you met at university and have been in a relationship with for 5 years. You have been living together for 3 years and you were happily married last year. You currently hold a Graduate visa which is due to expire.
Your wife has a job, but her income is £25,000 per year and you have no other income or savings you can use to meet the financial requirement for the spouse visa. You do however meet all the other requirements of the route.
The country you are from does not recognise same sex relationships and if you were to return there with your wife, you would both face a real risk of persecution and serious harm because of your relationship.
Thankfully, the Immigration Rules include some provisions which allow for permission to still be granted where there are ‘exceptional circumstances’.
In this scenario, where the financial requirement cannot be met, you can seek to rely on paragraph GEN.3.1(1) of Appendix FM, which explains that the Home Office must consider whether the financial requirement can be met in another way, in cases where:
“it is evident from the information provided by the applicant that there are exceptional circumstances which could render refusal of entry clearance or leave to remain a breach of Article 8 of the European Convention on Human Rights, because such refusal could result in unjustifiably harsh consequences for the applicant, their partner or a relevant child”.
This essentially means that the Home Office could accept other sources of income which would not usually be permitted, such as financial support from a family member or your own future earnings which you expect to start receiving in a few months.
If sufficient documentation and written representations can be provided to demonstrate that the alternative income is credible, and that the refusal would result in unjustifiably harsh consequences for you and your wife, the application could stand a good chance of approval.
In terms of other situations which an applicant may find themselves in, the Home Office guidance provides further examples of what could be considered as an ‘exceptional circumstance’ and an ‘unjustifiably harsh consequence’, and it is worth noting that the threshold is high.
We would strongly suggest that applicants seek legal advice in order to assess their situation and whether a refusal of an application could breach their Article 8 rights.
Scenario 2: I am in the UK on a Skilled Worker visa but I have had a serious injury and I am no longer able to work. Is there anything I can do?
This second scenario looks at the unfortunate reality of someone suffering a serious injury while living in the UK, which leaves them unable to continue working.
Imagine you are on a Skilled Worker visa and are walking home from work one day, when you are involved in a severe road traffic accident that was not your fault. The accident has left you incapacitated and unable to look after yourself. You require 24-hour carers to assist you with everyday tasks and are unable to board a plane to return to your country of nationality.
Given your inability to continue employment for the foreseeable future, you are nervous that the Home Office may curtail your visa, giving you a maximum of 60 days to switch into another visa category. The challenge is compounded by the fact that you do not strictly meet the criteria for any other visa category under the Immigration Rules.
In this scenario, you would benefit from an application for leave outside the Immigration Rules or another discretionary based application. This is a complex, evidence-based application with flexible features, but it may be a viable option for you. The application would require deep analysis as to whether you can obtain adequate medical care in your country of nationality and you would need to provide detailed medical reports to the Home Office. You may also be able to argue any other factors which would affect your ability to return to your country, such as negative treatment of severely disabled people in the country’s society, which would cause you severe harm if you were forced to return.
Through established UK and ECHR caselaw, medical considerations can engage Article 8. Notably, it is well established that Article 8 can encompass a person’s moral and physical integrity (for example, see cases such as MM (Zimbabwe) or GS (India)). Medical circumstances alone rarely qualify a case under Article 8; typically, other factors are necessary for a case to fall within the scope of Article 8. This is case-specific but may include long UK residency, established British children who rely on you, or other family ties to the UK.
For example, in the current scenario, if you have lived in the UK for a considerable period of time, have limited ties to your home country, and have built a family life in the UK with a partner, these factors would all support your private and family life arguments beyond strictly medical reasons.
Because Article 8 is broadly interpreted, it is important to seek legal advice to determine whether your situation might involve its application.
How Irwin Mitchell Can Help
Navigating the intersection of human rights and UK immigration law can be complex, especially when standard visa requirements cannot be met.
As the threshold for success in these cases is high, and each application is assessed on its own merits, it is crucial that applications are supported by clear arguments and well-documented evidence.
Whether facing financial barriers, medical challenges, or other compelling situations, seeking professional legal advice is essential to ensure that all relevant factors are considered and that applications are as robust as possible.
At Irwin Mitchell, our immigration team have extensive experience supporting clients with human rights-based applications. We offer sensitive, confidential advice tailored to your circumstances, to help you navigate the complexities of the immigration system and prepare a well-supported and thorough application.
Fortunately, Article 8 offers a vital safeguard for individuals whose private and family life would be disproportionately affected by a refusal and it is a reminder that, at its best, our immigration system should be guided by compassion and fairness.
If you or someone you know is in need of assistance, please do not hesitate to contact us for guidance and support.
