Leave Outside the Rules, Part 2 of 3: Article 8
In the second post in this series on leave to remain or enter the UK outside the immigration rules, I will more closely examine the role of the European Convention on Human Rights in this particular part of the UK’s immigration system.
In our previous blog,
I mentioned that one of the grounds for being granted discretionary leave outside the rules is in medical cases, where removal from the UK would constitute a violation of a person’s rights under Article 3 of the ECHR. I bring this up again because historically, the basis of a grant for leave outside the rules would usually be on the grounds that removal from the UK would constitute a violation of some poor soul’s rights under the ECHR.
By far and away the most common ECHR right cited in these cases was the right to a family and/or private life, which is enshrined in Article 8 of the ECHR. I use the past tense here not because the popularity of citing potential damage of Article 8 rights has in any way decreased because it has not. Rather, I use the past tense because it is now no longer wholly accurate to describe leave to remain on Article 8 grounds as being outside the immigration rules, as its provisions can now be found in the immigration rules, meaning that it is effectively part of the rules. However, there are still circumstances where an application under the Article 8 routes does not meet all the requirements found in the rules, but where leave will still be granted, and the grounds for it being granted are Article 8 grounds. Additionally, the criteria and requirements for Article 8 leave still have the same discretionary feel as the criteria are quite vague and almost subjective, in contrast to the more detailed criteria for the regular UK visa routes. This means that Article 8 leave still operates as if it were leave outside the rules.
We will examine Article 8 Leave in this blog post.
As the human right under Article 8 is the right to a family and private life, I will split them up in the same way and first look at claims on the basis of family life, and then claims on the basis of private life.
Leave under the Article 8 right to family life is usually used in cases where someone does not meet one or more of the requirements for leave to enter or remain as the partner of a British spouse or as the parent of a British child, but where there is a reason why said person should be allowed to enter or remain anyway, and that reason is held to be a right under Article 8.
There are already provisions in the immigration rules for leave to be granted even when some of the requirements, such as the English language requirement or the financial requirement, for leave as a partner or parent are not met if there is a good reason for it (those reasons are found in the rules and the official guidance). That person will then be put on a ten-year route to settlement, which means they can only apply for indefinite leave to remain after completing those ten years, rather than after five years as a normal application allows. The standard for these is that refusing the application would result in unjustifiably harsh consequences.
The Home Office’s official guidance states that:
“‘Unjustifiably harsh consequences’ are ones which involve a harsh outcome(s) for the applicant or their family which is not justified by the public interest, including in maintaining effective immigration controls, preventing burdens on the taxpayer, promoting integration and protecting the public and the rights and freedoms of others.”
This means that, on top of the right to disregard certain requirements that is in the rules, the Home Office has broad powers to grant leave outside the rules to a person who does not meet any of the requirements for leave as a partner or parent but where there is a risk of an Article 8 violation, not just the English language or financial ones.
In practice, it is very rare for anyone to have met the financial and language requirements but fail another one, and so usual for Article 8 to be cited in this context. It is, however, not unheard of. Most commonly, it is used by unmarried partners, step-parents and/or those who have not lived with their other half for very long, which would usually lead to a refusal as they have not officially met the relationship requirement, and they can show that refusing the application would have unjustifiably harsh consequences for the applicant, their partner and/or the children.
When leave is granted outside the rules on the basis of family life, they will be granted a UK visa that lasts for two and a half years that can be renewed over and over until they have been in the UK for ten years, at which point they can apply for indefinite leave to remain. This is what is called the 10-year route to settlement.
If the previous section seemed like a rough ride, then prepare for even more onerous conditions. The rules currently allow for people who have been in the UK for 20 years, even if they have not had a visa for most if not all of their time in the UK, to apply for leave to remain on the basis of their private life. If they have not been in the UK for 20 years, they will need to show that there are ‘very significant obstacles’ to their being integrated back into the society of their home country.
It is possible, however, to be granted leave outside the rules on the basis of a person’s private life, even if they haven’t been in the UK for 20 years or there are no significant obstacles to being reintegrated into their home country. This is usually granted in cases where there has been a big break in the middle of the 20 years, or the applicant has made such strong ties to the UK as to make removal unreasonable and disproportionate. In practice, this is very rarely granted as it is unusual not to remove someone if there are no significant obstacles to their reintegration or when there is no close family in the UK.
Conclusion and Impressions
Once again, the common theme in applications for leave outside the rules is the paradox of more and more criteria being added, so that these applications start to seem as if they are part of the rules, and yet each criterion is vague enough that the Home Office still retains much discretion, and can apply these criteria as harshly as it can or completely disregard them, depending on the case. This could lead one to speculate that this part of the UK’s immigration system is called ‘outside the rules’ not because the visa routes themselves exist outside the rules, but rather because the Home Office has few rules to follow when making a decision on an application.