Refugees and a family life
If asylum status is denied to a refugee or asylum seeker in the UK, they may try to establish sufficient rights of respect for a ‘private and family life’ under Article 8 of the European Convention on Human Rights (ECHR).
Art 8 provides that:
‘Everyone has the right to respect for his private and family life, his home and his correspondence… There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.’
The Razgar Test
The Razgar Test – based on a case from 2004 – provides a five-point test for Art 8 claims based on family or private life in the UK. It asks whether:
- someone’s removal from the UK would be an interference in their private/family life;
- this interference would engage the operation of Art 8;
- the interference (removing the person from the UK) would be in accordance with the law;
- the interference would comply with the legitimate aim of a democratic society;
- such an interference would be proportionate to the legitimate public end sought to be achieved by the public authority (the Home Office).
Nationality, Immigration and Asylum Act 2002
Article 8 is a qualified right and sometimes interference with the right by the state will be justifiable (eg, if it is in the wider public interest). However, if under the Nationality, Immigration and Asylum Act 2002 (NIAA 2002) (as amended by the Immigration Act 2014), an applicant appeals under s 6 of the Human Rights Act 1998 that a public authority has acted contrary to the ECHR and can show that their Art 8 rights have been breached, they will be granted leave to enter or remain in the UK.
Under Pt 5A of NIAA 2002, when a court or tribunal is ruling on whether a decision made under the Immigration Acts breaches a person’s Art 8 rights they must have regard to a number of public interest considerations. These include that it is in the public interest that:
- effective immigration controls are maintained;
- foreign criminals are deported;
- those seeking to enter or remain in the UK can speak English and are financially independent, because such persons they will not be a burden on taxpayers, and are better able to integrate into society.
The Act specifies that little weight should be given to:
- a private life or a relationship formed with a qualifying partner, that is established by a someone at a time when they were in the UK unlawfully;
- a private life established by a person at a time when the person’s immigration status is precarious. Both the Home Office and the Upper Tribunal have taken a wide definition of ‘precarious’ as including, eg, those with limited leave to enter or remain.
Case law has established some principles when assessing whether a family life has been established in the UK.
- The existence or non-existence of ‘family life’ for the purposes of Art 8 is essentially a question of fact depending upon the real existence in practice of close personal ties – Lebbink v The Netherlands (2004);
- Such close personal ties will be presumed to exist between children and their natural parents, but the presumption may be displaced – Singh v Entry Clearance Officer New Delhi (2004).
- The notion of family life is not confined to families based on marriage, and may cover other relationships (eg, grandparents, siblings, etc) – Singh v Entry Clearance Officer New Delhi (2004).
- Marriage is enough to establish family life between spouses as long as the marriages are lawful and genuine (Boultif v Switzerland). The Home Office has accepted that family life may exist between unmarried and same-sex partners even without the two years’ cohabitation requirement found in the Immigrations Rules if the relationship is sufficiently substantial or stable.
- Adult children may be able to claim family life rights depending on the facts. Mere love and affection would not be enough, there would need to be something more (eg, still living with their parents) (Singh v SSHD (2015)).
- The standard of proof of the facts in an Art 8 claim is on the balance of probability. It is up to the claimant to show interference with a protected interest, but once this is done, it is then up to the state to demonstrate proportionality. To do this, the state must show that the proposed step is lawful; that its objective is sufficiently important to justify limiting a basic right; and that it does not impair the right more than is necessary (Miao v Secretary of State for the Home Department (2006)).
In July 2012, the government published new guidance on assessing Art 8 claims. In relation to family life applications, these are mostly set out in Immigration Rules, Appendix FM.