Human Rights and Discretionary Leave
When does human rights and discretionary leave to remain become relevant?
In situations where you do not meet the strict 1951 Convention definition of an asylum seeker, but you nevertheless have a genuine and well founded fear of harm in your country of origin, or where you have been in the UK for a substantial amount of time and have formed strong work, family or other related ties, you may have a case for leave to remain on the basis of your human rights.
The European Convention on Human Rights protects a person’s rights to basic freedom and liberties. Two rights in particular can be the basis of a specific type of leave to remain in the UK, namely:
- Article 3 right to not be subject to torture or inhumane and degrading treatment
- Article 8 right to respect for your private and / or family life
Your right not to be subject to torture or inhumane and degrading treatment if you were to be returned to your country of origin is unqualified; that means once it is established, you must be given protection in the UK in the form of further leave to remain. These include situations where you are in receipt of life-saving medical treatment in the UK, which would be unavailable if you were to be returned to your country of origin. However, the threshold for Article 3 cases are incredibly high and it is therefore important that you contact us so that we can advise you as to the merits of your case.
Your private life consists of your right to work, study, form friendships and your community involvements and in some situations, it can also include medical treatment. Your family life includes your relations with your spouse, children, parents and other relatives. Unlike Article 3, Article 8 right to private and family life is qualified, which means that it will be balanced against wider principles such as immigration control. To make a successful application on this basis, you will need to demonstrate that your removal – i.e. the disruption caused to your right to private and / or family life- is a disproportionate and unreasonable one.
Human Rights claims under the Immigration Rules: Paragraph 276ADE
Since 9 July 2012, the Home Office has a primary duty to consider human rights related claims within the context of the Immigration Rules and to this effect, the following criteria have been established:
- has lived continuously in the UK for a consecutive period of least 20 years (mostly for those without visa status)
- is under the age of 18 years and has lived continuously in the UK for at least 7 and it would not be reasonable to expect the applicant to leave the UK;
- is aged 18 years or above and under 25 years and has spent at least half of his life living continuously in the UK;
- is aged 18 years or above and has lived continuously in the UK for less than 20 years, but there would be very significant obstacles to the applicant’s integration into the country to which he would have to go if required to leave the UK (i.e. no ties back home)
These are very specific criteria which if met would mean that the applicant will be given leave to remain within the Rules on the basis of Article 8 ECHR.
Human Rights claims outside the Immigration Rules: Discretionary Leave to Remain
If your case does not fall under the categories of Paragraph 276ADE, then you may make an application outside the Immigration Rules and this is called a ‘discretionary leave’ application.
Because these applications fall outside the Rules, they are successful in the most exceptional and compassionate circumstances. Often where an asylum seeker’s claim is refused because it does not meet the strict definition of a refugee under the 1951 Convention, but there are genuine reasons as to why the applicant cannot return to his country of origin, the Home Office will give him the right to remain on discretionary grounds. The length of stay given depends on the circumstances of an applicant’s case, and it important for you to contact us to discuss the merits of your case.
How GB Immigration can help
At GB Immigration, as specialists in UK immigration law, we can offer a full service to clients that require advice and assistance for their immigration needs. The quality of an initial application can make the difference between the success and failure of that application. It can be very frustrating to make an application only to find out when you receive the decision that your application did not contain the correct documentation and satisfactory explanation of your circumstances to ensure approval.
Our immigration team can help you navigate the often confusing maze of UK immigration law and assist you in deciding the most appropriate route.