Fighting for Your Rights: Human Rights Applications in UK Immigration Explained

This comprehensive guide delves into the intricacies of human rights applications within the UK immigration system, providing detailed insights into the legal framework and practical considerations.

Human rights are an integral component of the UK immigration system, safeguarding individuals whose circumstances entail compelling and compassionate factors. Human Rights Applications enable individuals to secure residency in the UK based on the rights enshrined in the European Convention on Human Rights (ECHR), which has been incorporated into UK law through the Human Rights Act 1998.

This article elucidates the fundamental aspects of human rights applications, including eligibility criteria, the application process, potential challenges, and illustrative examples. Whether seeking to obtain a visa on human rights grounds or providing support to a loved one, this guide simplifies the complexities of the process and elucidates the legal terminology in a manner accessible to the general public.

Definition of a Human Rights Application

A Human Rights Application is a formal request to remain in the UK on the basis of human rights protected under the ECHR. Commonly cited articles in immigration cases include:

• Article 8: The right to private and family life.
• Article 3: The prohibition of torture or inhuman treatment.

These applications are typically initiated when an individual falls short of standard immigration requirements but contends that their removal from the UK would infringe upon their human rights. Such cases often entail intricate legal proceedings, necessitating the provision of compelling evidence to substantiate the claim that removal would cause substantial harm or hardship.

Human Rights Applications under Article 8

Private and Family Life (Article 8):

• Article 8 guarantees the right to respect for an individual's private and family life, including their home and correspondence.
• The UK courts must assess whether deportation or the refusal of leave to remain would unjustifiably interfere with an individual&aps;s private or family life.

Eligibility Criteria for Human Rights Applications

Applicants seeking to invoke human rights protections under the European Convention on Human Rights (ECHR) must demonstrate that refusing their stay would infringe upon their rights. The UK Visas and Immigration (UKVI) evaluates each case based on specific criteria:

1. Length of Residence:
Long-term residents, such as those residing in the UK for extended periods (e.g., 10, 15, or even 20 years), are often in a stronger position. This is particularly evident when their family, career, or personal life is deeply integrated into UK society. The longer an individual has lived in the UK, the more compelling their case for human rights protection becomes.

2. Impact on Family Members:
The effects of removal on British citizens or settled individuals in the UK are given significant weight. This is particularly pertinent in cases involving children, as the law places paramount importance on their well-being. If the removal of a parent or guardian would cause substantial disruption to a child's life, the application may be successful under Article 8.

3. Children's Best Interests:
Under Section 55 of the Borders, Citizenship, and Immigration Act 2009, the UK government is mandated to prioritise the welfare of children in all immigration matters. Children's Rights and Well-being. If a parent's removal would adversely affect children's rights or well-being, it can strengthen the human rights claim.

4. Risk of Harm Abroad:
Applicants must demonstrate a genuine risk of facing torture, inhuman treatment, or degrading punishment in their home country under Article 3. The UKVI assesses the political, social, and security situation in the applicant's home country to determine the level of risk.

Practical Examples:

Example 1:
Private and Family Life: A father of two children born in the UK, who has overstayed his visa but has lived in the UK for 10 years, successfully applied for asylum. Removing the father would disrupt the children's upbringing, violating Article 8. The children, who have only known life in the UK, would suffer significant hardship if separated from their father.

Example 2:
Protection from Harm: A woman from a conflict-affected country, who has been involved in activism and received threats from opposing political groups, was granted asylum based on Article 3. The return to her home country would expose her to inhuman treatment, which justified the grant of protection under Article 3.

Example 3:
Combining Family Life and Protection from Harm: A couple from a country with a high risk of female genital mutilation (FGM) successfully applied for asylum under both Article 8 and Article 3. The risk of harm from FGM, combined with the family life aspect, met the thresholds for protection under UK human rights law.

Application Process:

Prepare Supporting Documents: Identify and provide supporting documents, such as passport, travel documents, or national identification cards.

Evidence of Residence: Utility bills, rental agreements, NHS records, school letters, or similar documents demonstrating the applicant's life in the United Kingdom are required.

Family Life Proof: Birth certificates, marriage certificates, photographs, and financial documents showing joint living arrangements are necessary.

Medical Reports (if applicable): Medical reports are required for claims involving health risks or evidence of harm from removal.

Process:

Complete the FLR(FP) form for family and private life grounds online. Certain supporting documents can be submitted digitally.

Fees: The application fee for a Human Rights Application needs to be paid along with the Immigration Health Surcharge (IHS). A fee waiver may be available if the applicant is unable to afford these fees due to financial hardship.

Biometrics and Evidence Submission: Attend an appointment to provide fingerprints, a photograph, and submit any additional documents.

Decision Timeline: The decision may take up to six months. However, applicants can request priority processing for an additional fee.

Challenges in Human Rights Applications: Applicants must provide substantial evidence to support their claims. This can include witness statements, medical records, and extensive documentation regarding the applicant's situation. Gathering credible, convincing evidence is often the most challenging aspect of the application process.

Refusals and Appeals Human Rights Applications are sometimes refused due to insufficient evidence or a lack of strong legal grounds.

However, applicants can appeal refusals to the First-tier Tribunal (Immigration and Asylum). It is important to note that the appeal process can be lengthy and stressful, often requiring expert legal representation.

Hostile Environment Policies The UK's immigration policies are often criticised for their 'hostile environment' approach, which can complicate Human Rights claims. For example, individuals without legal status may find it more difficult to secure the necessary documentation to prove their case.

Fee Waiver Applications for Human Rights Cases For individuals unable to afford the application fee or health surcharge, the UKVI offers a fee waiver. Applicants must demonstrate: • Destitution: Unable to pay for basic needs (food, housing, etc.). • Exceptional Financial Circumstances: Evidence that the individual's situation would be significantly worsened by paying the fees.

Example of Fee Waiver:

• A single mother on Universal Credit applied for a fee waiver and was granted it after showing evidence of financial hardship and destitution.

What Happens After a Grant of Leave? Successful applicants are usually granted limited leave to remain for 30 months. This status:

• Allows access to work, study, and public funds (if granted on a fee waiver).
• The individual may apply for Indefinite Leave to Remain (ILR) after 10 years of continuous residence in the UK, subject to meeting the necessary requirements.

Human Rights Applications provide an essential lifeline for individuals facing compelling circumstances in the UK. Whether based on family life, risk of harm, or other grounds, these applications are a vital tool for protecting fundamental rights in the face of challenging immigration situations.

However, the process can be complex and challenging, requiring careful preparation, detailed evidence, and legal expertise. Seeking professional advice from immigration lawyers or support from legal aid organisations can significantly improve the chances of success.

For official guidance, visit the UK government's Human Rights Applications page.