Human Rights Application

A person who has established his private and family life in the UK can apply to the Home Office, UKVI for permission to stay in the UK under Article 8 of the European Convention on Human Rights (ECHR).

Before 9 July 2012, all the applications made under Article 8 of the European Convention on Human Rights (ECHR) were considered by the Home Office outside the Immigration Rules and under the Discretionary Leave policy of the Home Office. However, Immigration Rules were changed and implemented on 9 July 2012 whereby any claim for Article 8 is now decided under the Immigration Rules. The relevant paragraphs of the Immigration Rules for the consideration of such Article 8 claims include paragraph 276ADE to decide the private life factor of the Article 8 claim and Appendix FM to decide the family life of the Article 8 claim.

The courts have held that where the facts of the case are exceptional and the exceptionality test is satisfied, the Home Office should still consider the Article 8 claims outside the Rules after it has been considered under the Immigration Rules. In very exceptional cases, it is still possible for an applicant to fail in Article 8 claim under the Immigration Rules but still succeed outside the Immigration Rules due to exceptional compassionate circumstances surrounding the human rights application.

Various applications which can be made by applicants under Article 8 of the ECHR include the following:

Applications based on Private Life 

Child who has lived in the UK for 7 years continuously

A child who has lived in the UK for 7 years continuously can apply for leave to remain on the basis of private life. Paragraph 276ADE(1)(iv) requires that the applicant must be under the age of 18 years and must have lived continuously in the UK for at least 7 years (discounting any period of imprisonment) and it should not be reasonable to expect the child to leave the UK.

A person who is over the age of 18 and under the age of 25 and has spent majority of his life in the UK

A person who is over the age of 18 and under the age of 25 can apply for leave to remain on the basis of his private life if he can show that he has spent at least half of his life living continuously in the UK. The application is made using application form FLR (FP) and if the application is successful, the applicant is granted leave to remain for 30 months under the 10 years route to settlement.

A person who is over the age of 18 and has lived less than 20 years in the UK but there would be very significant obstacles to his country of origin

A person who is over the age of 18 and has lived continuously in the UK for less than 20 years can apply for leave to remain on the basis of his private life in the UK if he can show that there would be very significant obstacles to his integration into the country to which he would have to go if required to leave the UK. The threshold is very high for someone to satisfy the requirement of very significant obstacles to his integration into his country of origin. Only the applicant with exceptional circumstances are likely to succeed under this category. The application under this category is made by using application form FLR (FP) and if the application is successful, permission to stay will be granted for 30 months under 10 years route to settlement.

Application on the Basis of Family Life in the UK 

Following are the various applications which a person can submit to the Home Office on the basis of his family life in the UK:

Family life with partner

A person who is partner of a person present and settled in the UK or of a British Citizen can apply for leave to remain in the UK on the grounds of his family life in the UK with his partner. The application is made using application form FLR (FP) and if the application is successful, the applicant is granted leave to remain in the UK for 30 months under the 10 years route to settlement. The important factor for such application to be successful is that either

• the applicant has a parental relationship with a child who is settled in the UK or is British, or
• the applicant has a genuine and subsisting relationship with his UK partner and there are insurmountable obstacles to family life with that partner continuing outside the UK.