Last updated: 25 September 2024
For information about the Illegal Migration Act 2023, see our Legal Update blog here.
You may be able to apply for the right to remain in the UK based on a human rights argument: your right to family and/or private life in the UK. This is sometimes called an ‘Article 8‘ application.
This page looks at what family and private life means and in what kinds of applications family and private might be relevant. On this page, you will find the following information about family and private life:
Family and private life
The right to family and private life is known as an Article 8 right, because it comes from Article 8 of the European Convention on Human Rights (ECHR), which is part of UK law through the Human Rights Act. This right continues to exist after Brexit. We will explain Article 8 in more detail below.
Your family life means your relationships with members of your family. Members of your family include: your wife, husband, civil partner, long-term partner or any children under 18. Your life with other family members is not always considered to amount to family life under Article 8. Your life with other family members (such as a parent, a sibling or an adult child) is likely to only be recognised if there are ties beyond the usual love and affection. Home Office guidance says that unmarried partners do not have to have lived together for 2 years to be classed as ‘family’, but you need to be able to show that you have a relationship similar to marriage or civil partnership for at least 2 years.
Your private life includes things like your work or studies, your life with your friends and neighbours, and involvement with your local community or charity activities. The courts have understood private life quite broadly, to mean the features of your life which are central to your social identity and your personal development. It also includes long-term NHS medical treatment. You can read more about Article 8 (and Article 3) arguments based on medical grounds here.
Living in the UK does not, in itself, amount to private life in this legal sense.
Not everything we think would be family and private life would be defined as Article 8 family/private life. The definition is case-specific and is shaped by case law. This means that every situation is different and you have to provide evidence for your situation.
The Home Office’s position is that, in terms of family life, only relationships between spouses and/or between parents/carers and children under 18 fulfil the family life requirement in the Article 8 sense. The courts, however, have tended to disagree and prefer a case-specific determination of whether someone’s family or private life engages Article 8.
Section 19 of the 2014 Immigration Act gave instructions to judges on how to decide Article 8 human rights appeals. That legislation says that “little weight” should be given to a private life or relationships formed if you are in the UK unlawfully, or to private life established when your immigration status in the UK is “precarious“. This means that it is difficult to succeed with family life arguments based on time in the UK when, for example, you had no application pending with the Home Office and no leave to remain (immigration status), or private life arguments when you had no right to remain or had time-limited leave to remain. Leave to remain may still be granted in these circumstances, if the case is exceptionally strong.
Article 8
Article 8 of the European Convention on Human Rights says:
1. Everyone has the right to respect for his [or her] private and family life, his [or her] home and his [or her] correspondence.
2. 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.
Article 8 is not absolute. It is a limited right. This means there are circumstances in which this right can, lawfully, be breached (this means broken). In the context of immigration, this means that while people have the right to a family and private life, the state also has the right to exercise immigration control.
Human rights law recognises that people have the right to a family and private life, but also recognises that the state has the right to exercise immigration control.
Article 8 arguments for the right to remain in the UK are therefore always about ‘weighing’ or ‘balancing’ these opposing rights – if you can prove that the breach to your Article 8 rights would be so serious that it outweighs the state’s right to remove/deport you (a “disproportionate breach”), you should be granted leave to remain.
The Home Office may admit that they are breaching your Article 8 rights, but say that it is a proportionate breach when considering the other factors, and that your grounds to stay don’t outweigh the government’s right to exercise immigration control.
Factors that count against you in these arguments are things like precarious immigration history and criminal convictions.
Factors that could be in your favour are family in the UK (particularly British children), lack of connection to your country of origin, length of time in the UK and community connections, and some medical and mental health needs.
Sometimes, the Home Office will say the breach of your family/private life rights is proportionate (or even that there will not be a breach) because your family members could leave the UK with you (even if they have the right to remain in the UK or even British citizenship), or they can keep in touch by Skype, email and occasional visits.
You may be told by that you could make a human rights application based on “compelling” or “exceptional” circumstances. The Home Office’s position, however, is that the immigration rules cover the extent of the UK’s obligations under human rights law, and so any Article 8 family/private life case that could be successful would meet the requirements of the immigration rules.
Nonetheless, the immigration rules cannot cover all the variety of people’s situations, and the courts have ruled that if a case does not meet the requirements of the immigration rules, Article 8 arguments should be considered outside of the rules.
In the case of Al Hassan in 2024 which was about family reunion, the Upper Tribunal said the Home Office was wrong to focus only on the rights of the UK-based sponsor. The ruling means that it can be possible to raise the Article 8 rights of the family unit as a whole, including family members who are overseas.
Applications involving human rights
If you are seeking asylum, human rights arguments should be made at the same time as applying for asylum. It is common, however, for human rights grounds (such as a relationship or the birth of a child) to arise after an initial application for asylum.
If you are appealing a refusal of your asylum claim, you or your lawyer may want to raise your right to family/private life at that point.
If you are “appeal rights exhausted”, your right to family/private life may form the basis of your further submissions to be considered as a fresh claim. This may be the only basis of your further evidence, or you may be submitting evidence about your family/private life in the UK in addition to new evidence about your asylum claim.
If you are an unaccompanied child, you may want to argue that your family/private life in the UK means your limited leave to remain should be extended, when you are nearing 17.5 years old. Coram Children’s Legal Centre have a factsheet with information about this.
If you are a parent of a child in the UK, you might be able to apply to stay based on the 7 year rule. A child who was born in the UK and has been continuously resident in the UK for at least 7 years can immediately apply for Indefinite Leave to Remain. A child who came to the UK as a child and has lived here continuously for 7 years can apply for settlement after 5 years. If you can show your responsibility for the child, and it would not be reasonable for you both to leave the UK, then you can also apply for Indefinite Leave to Remain under paragraph EX.1 of Appendix FM of the Immigration Rules.
You may need to demonstrate the strength of your family/private life in the UK if you are applying as a partner of someone in the UK, especially if you do not meet the rules regarding minimum income.
You may need to prove the strength of your family/private life in the UK if you are trying to stop the Home Office from removing you from the UK, or deporting you after a criminal conviction.
“Private life” can cover situations when you have lived in the UK for a long time, for example if you have spent 20 years in the UK; or if you are between 18 and 24 years old and you’ve lived continuously in the UK for more than half your life. These are examples of the types of application you can make on the 10 year route.
If you need medical treatment that is not available to you in your country of origin, you may wish to apply for the right to stay based on your right to private life. We have a blog post on this subject on our legal blog with more information.
Making an application
The application form or way to notify the Home Office of human rights grounds will depend on your situation – see section above.
Article 8 family/private life cases, if they are not part of an asylum application, are generally not eligible for legal aid. This means you cannot generally get free legal advice and representation for these sorts of applications.
It is possible to apply for exceptional legal aid funding, if you can show that your human rights would be breached if you are not given access to legal aid.
Fees
The application fee for human rights applications will depend on what kind of application you are making, if you are in the UK or outside the UK, and how many dependants you are including in the application. There is no fee to raise human rights grounds within an asylum claim. See pages mentioned above for the relevant fees for different types of applications.
Fee waiver
If you cannot afford to pay the application fee, you can apply for a fee waiver. You will need to show that you cannot afford the fee. Read about how to do this here.
Health surcharge
You will need to pay the immigration health surcharge as well as the application fee, unless you fall into one of the exempt categories or can prove you are destitute and entitled to a fee waiver.
ACTION SECTION
- Many people are eligible for fee waivers but do not know how to apply. Make sure you apply for one if you cannot afford to pay.
- The fee waiver form can quite be quite difficult to fill out. If you do not have a legal representative, a friend or volunteer may be able to help you with this.
- Be honest, and provide 6 months financial information to show you cannot afford the fee. Make sure you provide information of all bank accounts in your name, even if they are empty.
- Read about the evidence needed for proving your destitution here. Friends may be able to help with gathering (and maybe providing) the essential evidence to help you.
- If a fee waiver is not granted, your friends and community could help raise the money for the application fee/health surcharge. Some people have successfully raised immigration fees through online fundraisers.
If your application is successful
If you are successful in your application, the leave to remain you are granted (the length of time you are given permission to stay) will depend on the type of application you have made.
See the different pages mentioned above for more information on this.
If your application is refused
If an application that includes arguments based on your family/private life is refused, you may have the right to appeal the decision.
The Home Office may say, however, that they consider your human rights claim to be “clearly unfounded” and “certify” your claim. This might happen if you do not provide any evidence of your relationship with a child, for example. If your claim is certified, it means you do not have the right to appeal the refusal in the UK.
If you do have the right to appeal, it’s important that people who may have provided witness statements – about your family and private life in the UK – attend the hearing. They may be asked to give evidence. If you had a lot of witness statements, they may not all need to attend. If you have a lawyer representing you, they will give you advice about this. Evidence from witnesses who are unwilling to attend the appeal hearing – or are seen to be, even if they simply cannot attend the hearing – will generally be taken less seriously.
If you are subject to deportation after a criminal sentence and you make an application to stay based on human rights, the Home Office may certify the application unless you can show that “serious and irreversible harm” would occur if you had to appeal outside of the UK.
If you do not have the right to appeal the refusal, you may wish to consider a judicial review.