Under the Human Rights Act 1998 it is unlawful for any public authority, including the Home Office (UK Visas & Immigration) and its immigration officers to act in a way that is inconsistent with the rights set out within the European Convention on Human Rights.

The protection of the European Convention on Human Rights extends to every person within the United Kingdom and also to those under the authority and control of the UK immigration authorities.

What are the main eligibility requirements for leave to remain on human rights grounds?

In certain circumstances, you may be able to apply for leave to remain in the United Kingdom on the basis that to require you to leave would breach your human rights.

Anyone subject to an eligible immigration decision also has the right to appeal to the Immigration Tribunal on the ground that the immigration decision breaches their human rights.

The most common human rights provisions of the European Convention on Human Rights that are engaged in an immigration context are:

  • Article 3: prohibition on torture and inhuman or degrading treatment or punishment;
  • Article 8: right to respect for private and family life.

What else do I need to know about making a human rights application?

Article 3 is an absolute right and cannot be breached in any circumstances. This means that if requiring you to leave the UK would expose you to a real risk of ill-treatment, for example, from the government or non-State agents, or due to the withdrawal of medical care if you suffer from a serious medical condition, the UK may be required to grant you leave to remain.

Article 8 is a qualified right, which means that an interference with your private and family life needs to be disproportionate to constitute a breach of this right. In the immigration context, the right to respect for private and family life will often be balanced against the right of the state to control immigration and protect the economic well being of the country.

If you have a partner and/or child in the UK, Article 8 may be breached if a decision means that you would be separated from your family. It may also be breached if you have resided in the UK for a long period and established substantial ties here.

The Home Office must have regard to the best interests of the child when exercising its immigration functions.

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