Everyone in the UK has the right to respect for their family life under Article 8 of the European Convention of Human Rights.
But as a migrant from outside the European Economic Area, what do you actually need in order to be able to stay in the UK on the basis of your family life?
Basic ingredients of an Article 8 case
First, you need a family member who is a British citizen (or settled in the UK or who has refugee status / humanitarian protection). This post will focus on family members of British citizens.
That British family member generally needs to be a partner or a child under the age of 18. Family life is only recognised between other family members, such as a parent and an adult child or between adult siblings, if there are more than normal emotional ties.
You could be forgiven for assuming that is all you need. You have family in the UK, so requiring you to leave the UK would breach your Article 8 right to family life. It’s not so simple.
You also need to show that you could not enjoy your family life elsewhere. There is no right to enjoy your family life in the UK. Your British partner or child may well wish to stay in the UK and, as citizens, they are entitled to do so. However, in order for you to stay in the UK with them, you need to show you could not live as a family elsewhere.
To a lesser degree, you also need to show that separation from your family member(s) would be disproportionate, in the scenario that they stay in the UK and you leave. This is often a given. But it can become an issue in cases where the person relying on Article 8 has committed a crime and the deportation rules apply, or where the extent of the family connection is weak (e.g. a parent who has only occasional contact with their British child and does not take an active role in his or her upbringing).
The legal standard applied in family life cases
The right to family life is not absolute. It can be interfered with in the interests of maintaining effective immigration control. All cases involve what lawyers and judges call a “balancing exercise”, with the right to family life on one side of the scales and the public interest in immigration control on the other. This is also known as the “proportionality assessment”.
The above generalisation is true for every family life case, though the specifics change from case to case.
If you meet the immigration status and financial requirement in Appendix FM, you do not need to worry about showing you cannot live elsewhere. You meet the UK’s Immigration Rules, so there is nothing on the other side of the scales. The public interest in maintaining immigration control is not jeopardised by allowing you to stay.
If you do not meet the immigration status or financial requirements in Appendix FM, but you still want to stay in the UK with your British child, you need to show that it would not be reasonable to expect the child to leave the UK. You can also stay if you can show that there would be unjustifiably harsh consequences for you or your family if you were not able to stay in the UK.
If you do not meet the Appendix FM requirements, but you still want to stay in the UK with your British partner, you need to show that there are insurmountable obstacles to family life continuing outside the UK. This does not mean obstacles that are literally impossible to solve or get around. It means very significant difficulties which would entail very serious hardship to overcome. Again, the fall-back test of unjustifiably harsh consequences for you or your family is also available.
If you are a “foreign criminal” and you want to stay in the UK with your British partner or child you need to show that the effect of the deportation would be unduly harsh. It needs to be shown separation would be unduly harsh and that relocation to the other country would be unduly harsh.
Foreign criminals sentenced to over four years’ imprisonment need to show very compelling circumstances, over and above it being unduly harsh.
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The legal standard is important; it will most likely determine your case. But it does not change the underlying fact that everyone needs to show the same thing: that they and their family could not live elsewhere.
Most British people, many of whom will never have encountered immigration law, probably assume they have a right to enjoy family life in the UK. This is, after all, their home. Why would they live elsewhere? However there is no such right. If they fall in love with a non-EEA national, and the UK’s Immigration Rules are not met, they need to show they could not live elsewhere.
Or, as the Home Office’s guidance puts it (on page 52):
… a British citizen partner who has lived in the UK all their life, has friends and family here, works here and speaks only English may not wish to uproot and relocate halfway across the world, and it may be very difficult for them to do so. However, a significant degree of hardship or inconvenience does not amount to an insurmountable obstacle. ECHR Article 8 does not oblige the UK to accept the choice of a couple as to which country they would prefer to reside in.
This can often come as a nasty surprise.
How to show you cannot live elsewhere
Every case is different. It is impossible to say what will be enough, in general terms, to meet the above tests in any particular case. However, some useful questions to ask may be:
1 Would the British family member be able to get a visa to live in the other country?
2 Has the British family member ever been to the other country?
3 Has the British family member ever lived anywhere outside the UK?
4 Are there support networks in the UK (parents, siblings, friends etc.) that cannot be replicated in the other country?
5 Does the British partner have a child from a previous relationship they’d lose contact with if they relocate outside the UK?
6 What are the living conditions in the other country? Is there any information in the Home Office’s Country Policy and Information Notes that may be of assistance?
7 Are there any cultural or religious norms in the other country (e.g. poor treatment of women, bans on same-sex relationships, bans on inter-faith marriages, strict religious rules, dress codes etc.) which could cause difficulties?
8 Is there a language barrier that would be difficult to overcome?
9 Are there any health or developmental issues that would make relocation particularly difficult (poor mental health, autism, learning difficulties etc.)?
10 Is the British citizen receiving medical treatment that could not be continued in the other country?
If remaining the UK is simply a preference, you are unlikely to be successful. Something more is required. The more you can add to your side of the scales, the better.