The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to and makes it unlawful for any public authority including the ‘Home Office’ to act in a way it is inconsistent with the rights set out in the European Convention on Human Rights ( ECHR) and incorporates this into UK’s domestic law.
Eligibility for leave on Human Rights grounds
To file a claim, you must demonstrate that the conduct of the Home Office or any of its employees would violate the applicant’s human rights. The most typical claims come as a result of a refusal to grant leave to enter or remain in the UK, or as a result of a decision to deport someone from the country. Article 3, which prohibits torture and cruel or degrading treatment or punishment, and Article 8, which deals with the right to respect for private and family life, are two sections of the ECHR that are frequently used in the context of immigration.
An Article 3 breach is more likely to occur if a person is forced to leave the UK yet faces a high danger of mistreatment by state or non-state agencies in their native country, or if vital medical care is withheld owing to a serious medical condition. It is important to note that Article 3 is an absolute right that cannot be infringed upon under any circumstances. If a someone is denied leave or deported, and as a result, they are separated from their partner or family in the UK, such decision might potentially violate that individual’s and family’s Article 8 rights. Article 8 is a qualified right, which means it does not necessarily result in a violation, but only if the Home Office’s interference is deemed disproportionate. The Secretary of State is responsible for striking a reasonable balance between the right to privacy and family life and immigration management.
Unless the Home Office certifies the claim as plainly unjustified, Human Rights claims usually have a right of appeal to Immigration Tribunals. The Home Office will usually take into account an applicant’s duration of stay in the UK, the impact on any family members, including the best interests of the children, and any other significant ties the applicant has to the UK. It is also possible to apply for permission to remain for reasons not covered by any of the FLR application forms (HRO).