Article 8 and Exceptional Circumstances in Family Life (part 1 of 5)

Article 8 and Exceptional Circumstances in Family Life as a Partner or Parent Cases (part 1 of 5)

Due to the size and the complexity of the Article 8 area, I’ve divided this article into 5 parts.

Below is the summary of what I’ll cover in each part:

 

Part 1:

What is Article 8

Taxpayer’s Interests

The 5-year and the 10-year Routes

Article 8 for Visitors

What Happens when the Home Office Receives Your Visa Application?

Paragraph EX.1.

 

Part 2:

Parental Relationship with a Child

The Child’s 7 Years of Residence in the UK

Is there a Genuine and Subsisting Parental Relationship?

Is it Reasonable for the Child to Leave the UK?

Strategical Considerations

 

Part 3:

Is there a Genuine and Subsisting Relationship with a Partner

Insurmountable Obstacles

What Does Not Help

What May Help

 

Part 4:

Article 8 Exceptional Circumstances

The Minimum Income Requirement

Other Sources of Income, Financial Support or Funds in Exceptional Circumstances

There are Strings Attached

The Genuineness, Credibility and Reliability

 

Part 5:

The Best Interests of a Child

How the Home Office considers the Best Interests of a Child:

• Generally
• Where the child is resident overseas
• for children residing in the UK
• Where there are Family Court orders

No Recourse to Public Funds

Coronavirus (COVID-19) Concessions

 

This is part 1.

 

What is Article 8?

Article 8 of the European Convention on Human Rights (the ECHR) provides that:

8(1) Everyone has the right to respect for his private and family life, his home and his correspondence.

8(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.

However, when in certain cases, the parties cannot meet the requirements of the Immigration Rules, the Home Office can still refuse these applications, and the refusal will not infringe Article 8.

This article will explain when Article 8 is most likely to be engaged and when not.

 

Taxpayers’ Interests

Whenever making a decision on the application, the Home Office should always consider taxpayers interests. In other words, they need to make sure that as a result of them allowing the application, it will not be at the taxpayers’ expense.

It is because there are costs that arise from migration to the UK. This includes, but is not limited to:

• provision of education for children of compulsory school age
• a sponsor’s entitlement to claim tax credit or child benefit for their partner’s children
• the NHS costs.

Partially because of this, they’ve introduced a compulsory English language test. Being able to speak English aims to encourage integration – make it easier to communicate and find a job.

This approach became law on 28 July 2014, after the Immigration Act 2014 received Royal Assent. Section 19 of the 2014 Act amended the Nationality, Immigration and Asylum Act 2002. It requires the courts to give due weight to that public interest when deciding Article 8 cases. This means that the public interest consists of several parts:

1. for maintaining effective immigration control;
2. in family migrants being financially independent and able to speak English;
3. also, bear in mind that little weight should be given to a private life established by a person who is in the UK unlawfully

Therefore, in certain circumstances, the Home Office may refuse family reunion applications, encouraging the applicants to wait until they meet the necessary requirements (for example, financial or English language requirements).

 

The 5-year and the 10-year Routes

There are two rules to settlement on the basis of family life in the UK as a partner or as a parent: a 5-year and a 10-year route.

The 5-year route is for those who meet all the requirements of Immigration Rules: the validity, the suitability and the eligibility requirements.

The 10-year route is when the applicants cannot meet certain requirements (for example, the financial aspect of the eligibility requirement), but the Home Office accepts that there are exceptional circumstances in the case, and the refusal will trigger Article 8.

 

Article 8 for Visitors

What is important to note here is that if you are in the UK as a visitor or with a visa for less than 6 months (unless it is a fiancé(e) visa), it is highly unlikely that you’ll be able to employ Article 8 in your case. In cases like this, you’ll most certainly be required to leave the UK and reapply from outside.

Also, you cannot submit your application if you are on immigration bail unless you have been in the UK for more than 6 months.

 

What Happens when the Home Office Receives Your Visa Application?

When the decision-make receives an application, they should, first of all, consider if the applicant meets the relevant validity, suitability and eligibility requirements. You can find these rules in Immigration Rules, Appendix FM.

If the applicant is in the UK and does not apply under Appendix FM, the Home Office should then decide whether the application meets the private life Immigration Rules. 

If the applicant meets neither Appendix FM nor private life rules, then the UKVI should check if there are any exceptional circumstances in the case that would render refusal a breach of ECHR Article 8. There is a dedicated section in Appendix FM, which allows them to do this. This section is called ‘Section EX: Exceptions to certain eligibility requirements for leave to remain as a partner or parent’.

If section (paragraph) EX applies, then the Home Office will allow the application. However, they will switch the applicant from a 5-year to a 10-year route. So, in other words, they’ll be able to settle (to apply for Indefinite Leave to Remain) only after 10 years (120 months), not 5 years (60 months) as with other cases.

 

Paragraph EX.1.

Paragraph EX.1. is not a standalone section. It only applies when someone is applying under Appendix FM (as partners or children).

If and where it applies, the Home Office can wave the immigration status, finances and English language eligibility requirements under the 5-year route. However, when then do – they switch the applicant from a 5-year route to a 10-year route.

Now, let us consider when it actually applies.

It applies in two circumstances:

1. when there is a genuine and subsisting parental relationship with a child.
2. when there is a genuine and subsisting relationship with a partner.

At part 2 I’ll cover:

• Parental Relationship with a Child
• The Child’s 7 Years of Residence in the UK
• Is there a Genuine and Subsisting Parental Relationship?
• Is it Reasonable for the Child to Leave the UK?
• Strategical Considerations