Family life (as a partner or parent), private life and exceptional circumstances – Part 1


Background 

Since 09 July 2012, the Immigration Rules have contained a new framework for considering applications and claims engaging Article 8 of the ECHR (the right to respect for private and family life). Appendix FM and Paragraph 276ADE(1) of the Immigration Rules provide the basis on which a person can apply for entry clearance to the UK or leave to remain in the UK on family life grounds or leave to remain on private life grounds. Article 8 of the ECHR states 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 public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interest 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.

For those wishing to come to live or remain in the UK there are various immigration requirements which must be met. These rules, together with the guidance on exceptional circumstances and children’s best interests contained within it, provide a clear basis for considering immigration cases in compliance with ECHR Article 8, as approved by the Supreme Court in February 2017 in MM (Lebanon) & Others v SSHD [2017] UKSC 10 and Agyarko & Ikuga v SSHD [2017] UKSC 11. 

These rules reflect the qualified nature of Article 8, setting requirements which properly balance the individual right to respect for private or family life with the public interest in safeguarding the economic wellbeing of the UK by controlling immigration, in protecting public from foreign criminals and in protecting the rights and freedoms of others. 

The rules also take into account the need to safeguard and promote the welfare of children in the UK. Section 55 of the Borders, Citizenship and Immigration Act 2009, together with Article 3 of the UN Convention of the Rights of the Child, means that consideration of the child’s best interest must be a primary consideration in immigration decisions affecting them. 

The Immigration Act 2014 received Royal Assent on 14 May 2014. From 28 July 2014, section 19 of the act amended the Nationality, Immigration and Asylum Act 2002 to set out the public interest requires in immigration cases engaging the qualified right to respect for private and family life under ECHR Article 8. 

It requires the courts to give due weight to that public interest when deciding such cases. This means that the public interest in the maintenance of effective immigration control and in family migrants being financially independent and able to speak English, as required by the family Immigration Rules, is now underpinned in primary legislation. 

Section 117B of the Nationality, Immigration and Asylum Act 2002, inserted by section 19 of the Immigration Act 2014, and upheld by the Supreme Court in Ruppiah [2018] UKSC 58, provides that little weight should be given to a private life established by a person who is in the UK unlawfully or with precarious immigration status. 

A person’s immigration status is precarious – 

  • If they are in the UK unlawfully, or
  • If they require leave to enter or remain in the UK, but do not have such leave, or
  • If they are in the UK with limited leave to enter or remain but without settled or permanent status, or
  • If they have obtained leave fraudulently, or
  • They have been notified that they are liable to deportation or removal.

 When people cannot satisfy the requirements of the 5-year route to settlement they are expected to leave together with their children. Unless there is evidence to suggest that - 

  • It would be unreasonable for a child to leave, or
  • Where there are insurmountable obstacles to family life with a partner outside of the UK, or
  • There are exceptional circumstances which the family can satisfy to enter or remain in the UK on a 10 year route to settlement.

 Specified evidence 

Appendix FM must be read together with Appendix FM-SE, which sets out the specified evidence which must be submitted with an application for entry clearance or limited leave to remain as a partner or parent. An applicant must provide documentary evidence relating to the relationship requirements specified in Appendix FM-SE, such as evidence that the marriage or civil partnership is valid in the UK. 

One must note that not all evidence in family or private life applications is specified under Appendix FMSE, due to the variety of evidence that may be provided for example, to demonstrate a genuine and subsisting relationship to a child, or an unmarried couple having lived together for more than 2 years.