The right to respect for family life created during precarious immigration status

Article 8 of the European Convention on Human Rights (ECHR) protects the right to respect for a person’s private and family life. Unlike some human rights enshrined in the ECHR, the right to private and family life is not absolute - any consideration of such rights by a court or tribunal involves a balancing exercise between the rights of individuals and the rights of the State (for example, the need to maintain effective immigration control). Different factors are given different weight in this balancing exercise, and one of the factors that is considered is what a person’s immigration status was when they established their private and/or family life.

In the last six weeks there have been two judgements handed down by the Court of Appeal in England and Wales which clarify the position in respect of the weight to be given to private life and family life in light of a person’s immigration status: GM (Sri Lanka) [2019] EWCA Civ 1630, and Lal v Secretary of State for the Home Department [2019] EWCA Civ 1925.

While both of these cases also discuss in detail other considerations under article 8 (which are not covered by this blog post), the Court of Appeal in both cases addressed the weight to be given to private life and to family life with a qualifying partner established by someone with what is known as ‘precarious immigration status’.

Someone with ‘precarious immigration status’ has been defined by the Supreme Court as someone who is in the UK lawfully, but who does not hold indefinite leave to remain.

The take-away from these recent Court of Appeal judgements is that they confirm that the weight to be accorded to private life and the weight to be accorded to family life are two clearly distinct concepts. In terms of private life, the Court confirmed that the relevant law states that only little weight should be given in the balancing exercise to the private life that a person has established whilst they have precarious immigration status. In terms of family life, however, the Court has held that the relevant law does not specify that only little weight should be given in the balancing exercise to family life. Rather, the Court confirmed that the law states that little weight should only be given to family life whilst a person was in the UK unlawfully, as opposed to with precarious immigration status.

Importantly, in Lal v SSHD, the Court of Appeal then went on to acknowledge that there are varying degrees of precariousness of immigration status - and there is no ‘one size fits all’ approach in terms of the weight to be given to family life in such a scenario. The Court of Appeal has confirmed that a person’s immigration status may significantly affect the weight to be given to the right to respect for their family life, and that each case is likely to be fact-sensitive. It therefore is open to the courts and tribunals to accord such weight to a person’s family life with a qualifying partner, which was established during precarious immigration status, as they think appropriate in the particular circumstances of the case.

If you wish to discuss making an immigration application on the basis of your private and family life, please do not hesitate to contact one of the solicitors in our immigration team.