Private and Family Life
Human Rights & Private Life
What does the law say?
- Article 8: Right to privacy
- 1 Everyone has the right to respect for his private and family life, his home and his 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.
What constitutes a 'private life'?
Essentailly, each person has the right to live their life privately without interference.
The courts have interpreted the concept of 'private life' very broadly. It covers things like your right to determine your sexual orientation, your lifestyle, and the way you look and dress. It also includes your right to control who sees and touches your body. For example, this means that public authorities cannot do things like leave you undressed in a busy ward, or take a blood sample without your permission.
The broad concept of private life also covers one's right to develop their personal identity and to forge friendships and other relationships. This includes a right to participate in essential economic, social, cultural and leisure activities. In some circumstances, public authorities may need to help you enjoy your right to a private life, including your ability to participate in society.
What constitutes a family life?
You have the right to enjoy family relationships without interference from government. This includes the right to live with your family and, where this is not possible, the right to regular contact.
'Family life' can include the relationship between an unmarried couple, an adopted child and the adoptive parent, and a foster parent and fostered child.
See also the right to marry.
What is meant by home?
The right to respect for your home does not give you a right to housing. It is a right to enjoy your existing home peacefully. This means that public authorities should not stop you entering or living in your home without very good reason, and they should not enter without your permission. This applies whether or not you own your home.
See also the right to peaceful enjoyment of property.
Is this right absolute and are there any restrictions to this right?
No this right is not absolute i.e. there are situations when public authorities can interfere with one's right to respect for private and family life, home and correspondence. This is only permitted where the relevant authority can show that its actions are lawful, necessary and proportionate in order to:
- protect national security
- protect public safety
- protect the economy
- protect health or morals
- prevent disorder or crime, or
- protect the rights and freedoms of other people.
- the action is 'proportionate' when it is appropriate and no more than necessary to address the problem concerned.
Before 9 July 2012, all the applications made under Article 8 of the European Convention on Human Rights (ECHR) were considered by the Home Office 'outside the Immigration Rules' and under its 'Discretionary Leave policy'
Article 8 is now incorporated under the Immigration Rules. the idea and concept being that the Rules are drafted in such a way that thay are compliant with Article 8. Applications under Article 8 - private life are considered under paragraph 276ADE of the Immigration Rules and applications under 'Family Life' are considered under Appendix FM of the Rules.
There are various types of applications that can be made by applicants under Article 8 of the ECHR include the following:
Private Life in the UK applications can be made along the following sub-headings:
20 years long residence in the UK
A person who has lived in the UK continuously for 20 years in the UK whether lawfully or unlawfully can apply for permission to stay in the UK for 30 months under paragraph 276ADE of the Immigration Rules. Before the expiry of such leave to remain, the application can apply for extension of stay for another 30 months leave to remain. After completion of 10 years residence under this category, the applicant is entitled to apply for Indefinite Leave to Remain ('ILR') in the UK.
A child who has lived in the UK continuously for 7 years
A child who has lived in the UK for 7 years continuously can apply for leave to remain on the basis of its private life. Paragraph 276ADE(1)(iv) requires that the applicant must be under the age of 18 years and must have lived continuously in the UK for at least 7 years (discounting any period of imprisonment) and it should not be reasonable to expect the child to leave the UK.
A person over the the age of 18 and under the age of 25 and has spent the majority of his life living in the UK
A person who is over the age of 18 and under the age of 25 can apply for leave to remain on the basis of his private life if he can show that he has spent at least half of his life living continuously in the UK. The application is made using application form FLR (FP) and if the application is successful, the applicant is granted leave to remain for 30 months under the 10 years route to settlement.
A person who is over the the age of 18 and who has lived in the UK for less than 20 years but there would be very significant obstacles to his return to his country of origin
A person who is over the age of 18 but has lived continuously in the UK for less than 20 years can apply for leave to remain on the basis of his private life in the UK if he can show that there would be very significant obstacles to his integration into the country to which he would have to go if required to leave the UK. The threshold is very high for someone to satisfy the requirement of very significant obstacles to his integration into his country of origin. Only the applicant with exceptional circumstances is likely to succeed under this category.
The Private life applications, if successful, will afford permission to stay in the UK for an initial period of 30 months under 10 years route to settlement. On compl;etion of 10 years under the route, you are eligible to apply for ILR.
Family Life in the UK applications
The following are the various applications a person can submit to the Home Office on the basis of their 'family life' in the UK:
Family life with a Partner
A person who is partner of a person present and settled in the UK or of a British Citizen can apply for leave to remain in the UK on the grounds of his family life in the UK with that partner. Assuming the application is successful, the applicant would be granted leave to remain in the UK for 30 months under the 10 years route to settlement.
What are the important factors the Home Office is looking for under this category?
- does the applicant have a parental relationship with a child who is settled in the UK or is British?, or
- does the applicant have a genuine and subsisting relationship with his UK partner and there are insurmountable obstacles to family life with that partner continuing outside the UK?
Both Family and Private Life applications are complex. There are various other requirements, policies and supporting documents to consider to be able to fully assess the merits in applying.