Article 8 of the European Convention on Human Rights (ECHR) is often the last line of defence against removal for many long-term residents of the UK. It is of particular importance to those who entered the UK as children, or who have overstayed previous visas. Article 8 provides the right to respect for private and family life, setting the foundations of the Appendix Private Life rules, and providing a basis for appealing refusals which would break up deeply integrated lives.
However, a concerning trend has been seen within recent Upper Tribunal and Court of Appeal judgements, whereby UK case law is diminishing the protection offered by Article 8, by placing an emphasis on an applicant's "precarious status", or breach of Immigration Laws, essentially determining that on balance, a person's lack of adherence to the rules outweighs any private life they may have established.
What is "precarious status" and why does it matter?
The term "precarious status" is used to describe time someone is in the UK without permission, meaning without a valid visa. When the Home Office assess Human Rights applications, part of their consideration is whether the applicant has chosen to build a life in the UK, knowing that they had no secure legal right to be here. Their view of this is that, if someone has no valid visa, or valid right to remain in the UK, then very little weight can be given to relationships and life built during that time. Whilst this principle has a place in preventing abuse of immigration rules, the way it is being applied is becoming disproportionate, and often a clear breach of the intentions of the Human Rights Act.
In practice, applying "little weight" to any private life established while a person's immigration status was precarious, creates an almost impossible hurdle for applicants who rely on the 10-year Appendix Private Life route (not to be confused with settlement under the 10-year Long Residence route).
Very significant obstacles
For an application to succeed under the 10-year Private Life route, two things must be evidenced:
- The applicant must have been continuously resident in the UK for at least 20 years, or
If the applicant is between 18 to 24 they must have spent at least half their life in the UK
And
- There would be "very significant obstacles to integration" into the country to which they would have to return
Whilst an applicant may be able to clearly evidence the residence requirement, showing significant obstacles to integration is where issues start to arise. When considering an application and whether someone can integrate back into society in their home country, the Home Office will look at both their level of integration into the UK, and any issues they would have integrating overseas.
This is where the impact of the "precarious" time is most felt. If the Tribunal gives "little weight" to the applicant's deep integration in the UK (their perfect English, their UK education, their social network), it effectively makes the "very significant obstacles" test almost impossible to meet. If their life in the UK counts for little, the comparative difficulty of life elsewhere also appears less significant.
How can an application under Article 8 Private Life be successful?
For an application to be successful an applicant would need to be prepared to provide substantial evidence relating to their ties to the UK, and to the severity of the obstacles to them integrating back into their country of origin.
Successful applications often involve specific legal evidence, such as expert country reports detailing changes to the home country since the applicant has been absent, medical and psychiatric reports detailing any medial issues, but also importantly the support network in the UK and impact of removal on the applicant's psychological health and documentary evidence of ties to the UK.
Whilst it is necessary to provide evidence of ties to the UK, this should be carefully balanced with evidence of how disconnected an applicant is from their country of origin, for example by not knowing the language, or cultural changes during their absence.
It will be necessary to persuade the Home Office, or potentially a Judge of the First-Tier Tribunal, that removal would constitute a disproportionate interference with the applicant's Article 8 rights.
The need for compassion
The legal stance that a person who has spent the majority of their adult life in the UK has not truly integrated because of their status is flawed. Integration is a sociological reality, not merely a legal one. When someone's cognitive, social, and cultural existence is entirely bound up in the UK, the threat of removal constitutes an extreme interference with Article 8, regardless of how their status was obtained.
The focus must change from how the life was built to the severity of the impact of the removal, but the current stance highlights the need for meticulous preparation and solid legal argument in these complex cases.