Human Rights Under Current Immigration Rules

Apr 13, 2015 | Blog

Everywhere we look currently there is debate in relation to Immigration issues. Central to these debates are issues relating to Article 8 of the Human Rights Act 1998 (ECHR). Because we have a General Election in May 2015, the Government and significant parts of the Media have tried unfairly to propose that the Act has been used to allow foreign criminals and terrorists to stay in the UK.

Article 8 exists to protect the right to family and private life. It is an essential, basic right under the Human Rights Act 1998 which follows the European Convention on Human Rights (ECHR). What is often forgotten by the Government (and indeed many factions in popular Media) is that Article 8 rights apply to everyone who lives in the UK irregardless of whether they are foreign nationals subject to a visa, or British nationals. The erosion of this important Act should make us all worried. By focusing on foreign criminals and terrorists the government neglects an important point- that the vast majority of cases involving Article 8 affect people with no adverse Immigration history. Many of whom have made significant positive contributions having lived in the UK for many years.
Article 8 articulates the rights to family and private life that an individual can enjoy in the UK. The right to family life is normally applied where a foreign national is trying to stay in the U.K to be with a British National usually a partner or child. The right to private life is where the individual trying to stay in the U.K has no British family but instead is arguing a right to stay through establishment in the U.K. This may be through length of time lived in the U.K or connections with local community through employment or other activities. Although technically these two properties of Article 8 should be considered together, there is however in fact a major distinction in the way “family life” cases and “private life” cases are considered.

In its Immigration rules of 9th of July 2012, the Government tried to establish its own version Article 8. This raised the bar to a very unfair and high level. The Government stated that only exceptional cases would meet this requirement. The Courts initially were not happy with this involvement by the Government. As a result a complicated test is now in place. If the matter appears before an Immigration Judge, the Immigration Judge firstly has to look at whether the Governments version of Article 8 is satisfied. Only in certain circumstances is the judge then entitled to go on to consider the Article 8 position as established before the 9th of July 2012 (involving assessment of proportionality between the rights of individuals and the rights of the State to have firm Immigration rules). The new rules appears to put the balance more firmly in favour of the States right to have firm Immigration rules. As previously explained the distinction between the right to family life and the right to private life type cases is extremely important. We have found that first instance applications to the Home Office and also appeal cases (both First Tier Tribunal and Upper Tribunal) Article 8 family life cases have a higher chance of success than Article 8 private life cases. In particular Article 8 family life cases involving British national children are more likely to succeed. This is because in the assessment of Article 8 cases, the rights of children should be of paramount concern.

There is a category of private life cases under Article 8 which are particularly suffering as a result of the continued political dog fight prior to a General Election in May 2015. Clients we have dealt with under Article 8 private life cases are not serious criminals and are not terrorists (both categories which are of course properly and strictly dealt with within the Governments rules). The cases which we often deal with are of individuals, and often their children, who have established themselves in local Communities and are of benefit to those Communities. A few examples of real life, recent cases we have acted for follow.

Case 1: This year we had a case of a family from Bangladesh that consisted of a mother and her two children who are of school age. The father was previously in the UK however he deserted the family and returned to Bangladesh. The youngest child was diagnosed a few years ago with an extreme and horrendous form of facial cancer, which was on a trip to Bangladesh misdiagnosed. In the UK the child, due to his father’s status, was entitled to have NHS treatment. Because of the aggressive form of cancer he had to have high doses of radiation which has had a severe effect on the child. The family applied to extend their leave in the UK while the child was still undergoing treatment for his facial cancer. The father subsequently returned to Bangladesh. The matter was refused by the Home Office; the matter thereafter went before an Immigration Judge at the First Tier Tribunal.

There was clear evidence at the Tribunal hearing from the Oncology Consultant treating the child. The consultant stated that although the cancer was at that period of time in remission, he would need to have lots of follow up treatment including a fibular graft and treatment for the toxins in his body due to the radiotherapy. There was also clear evidence from the Consultant in the U.K. and from a Consultant in Bangladesh to say that the facilities for the ongoing care of the child in Bangladesh were simply not available. In addition to the medical evidence, a detailed Consultant Psychiatrists report also provided showed that the child had suffered considerable psychological damage due to his cancer treatment and the thought he might have to go back to Bangladesh.

In addition there was strong evidence from the Community to show that the family had adapted and integrated into their local Community which was supporting them. The child had been awarded a Brave Hearts Award from the local Community due to his cancer. He and his brother have been in the UK from an early age, for nearly 7 years and they had spent all their schooling years here in the UK. Despite all this evidence before the First Tier Immigration Judge, the matter was refused under Article 8 of the Human Rights Act 1998. I drafted grounds for permission to appeal to the Upper Tribunal which were successful and as a result we then appeared before the Upper Tribunal Senior Immigration Judge. But the case was again dismissed. Further grounds were the drafted and submitted to the Upper Tribunal. Sadly whilst finalising this Article the child of the family died in the U.K. We are yet to have a decision on the case.

Case 2: We have many other examples of the harshness of the application of Article 8 to innocent families. Another case involved a Ukrainian national who had lived in the UK for a few years having previously had residency in Portugal. She was being asked to return to the Ukraine to apply for Entry Clearance despite the current problems in the Ukraine and clear evidence that her self-employed husband could not meet the financial requirement under the Immigration rules because of a serious injury he had suffered the year before.

Case 3: Another case involved a Nigerian Academic who had three children in the UK and who had been in the UK for more than ten years. His eldest child had lived in the UK for more than seven years and was clearly doing well at school. The Client’s wife was also working in the Health Service in the UK and thereby contributing financially to the UK. The Appellant himself was working as a Volunteer for a local charity. The Home Office refused the application for Further Leave to Remain and this was upheld by an Immigration Judge. There is no doubt that the Government’s current position in relation to Article 8 cases is extremely harsh. The surrounding hype and Immigration bashing by the Government and the Media has clearly having a knock on effect against this vulnerable group of Clients.

The best advice for such clients is for them to get competent advice as soon as possible especially when making their initial applications. Sometimes clients submit applications themselves without sufficient detailed evidence. These applications often fail. Thorough preparation well in advance by a competent and experienced Immigration practitioner is crucial. At Latif Solicitors we have an excellent track record. Our applications are prepared in great detail, often working with clients over several months before the application is made in order to maximise our success (without going to appeal). We take an individual approach to each case, building the evidence base for the application with care and precision.

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