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Saturday, January 17, 2009

Spouse Visa and application of Human Rights Act as well as Compelling and Compassionate Reasons

In our situation, my girlfriend was married before and has 3 kids with her previous husband, two of them living with her. One of 14 and other is 17. She also suffers from diabetes. I believe both of these can be grounds for compelling and compassionate reasons because:

1. She should not be separated from her kids.
2. She should not be separated from her husband (me).
3. She should have the right to stay with all of them.
4. Her ex-husband does not earn enough to be able to support 3 children, has 1 bedroom house and low income.
5. She can have better medical facilities in the UK through NHS.
6. She will not be able to live in Pakistan freely without possible danger to her life.

Of course it is at the discretion of the ECO to decide.

I have listed down what ECHR says on Article 8. Look at the links I’ve provided, read the cases and how they were judged on the basis of Article 8 and 3 and 2.

Seperation from kids may fall under Article 8. It is a Qualified Right.

Medical cases may fall under Article 3. It is a Non-derogable right.

Her life being in danger may fall under Article 2. It is a Non-derogable right.

Article 8

A bit on European Convention on Human Rights from Wikipedia:

Article 8 – Privacy:

Article 8 provides a right to respect for one's
"private and family life, his home and his correspondence",
subject to certain restrictions that are "in accordance with law" and "necessary
in a democratic society". This article clearly provides a right to be free of
unlawful searches, but the Court has given the protection for "private and
family life" that this article provides a broad interpretation, taking for
instance that prohibition of private consensual homosexual acts violates this
article. This may be compared to the jurisprudence of the United States Supreme
Court, which has also adopted a somewhat broad interpretation of the right to
privacy. Furthermore, Article 8 sometimes comprises positive
obligations
: whereas classical human rights are formulated as prohibiting a
State from interfering with rights, and thus not to do something (e.g. not to
separate a family under family life protection), the effective enjoyment of such
rights may also include an obligation for the State to become active, and to do
something (e.g. to enforce access for a divorced father to his child).

From OPSI UK Website:

Article 8 Right to respect for private and family life:

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

Also see Article 8 of the ECHR - interim casework instruction (Chikwamba and others)

4. Consideration Process
When deciding claims under Article 8 it is still
necessary for an individual to make out his or her claim before a decision
is
made that their removal would breach Article 8. All staff should still
complete
the standard five stage consideration process.

Stage 1:
Does the claimant
have a family or private life in the UK?
Stage 2: If
family life exists will
refusal/removal interfere with that family life?
Stage 3: If there is
interference with family life, is it in accordance
with the law?
Stage 4: Is
the interference in pursuit of one of the
permissible aims set out under Article
8(2)?
Stage 5: Is the
interference proportionate to the permissible aim?

Stages 1 – 4 must be
considered broadly in line with existing guidance. If a
case can be refused
on the basis that there is no family or private life, or on
the basis that
there is no interference with that family or private life (for
example
because all the members of the family are to be removed together), then
the
recent cases do not make a difference to that refusal.

The recent cases
primarily affect Stage 5 of the consideration process. The task for
decision-makers in assessing whether any interference in family life would
be
proportionate is to:

Consider all the relevant factors, weigh up relevant considerations and
decide
whether refusal or removal will result in a disproportionate
interference with
Article 8 rights.

If refused, explain fully the consideration of these factors in the refusal
letter

In addition to existing guidance on the factors to
consider
when assessing proportionality caseworkers must also consider the
following:

Whether it is proportionate to require the individual to leave the UK and
apply
for Entry Clearance, having regard to the factors set out by the House
of Lords
in Chikwamba; and

What effect any delay in decision making has had on the proportionality
test,
having regard to the factors set out by the House of Lords in EB
Kosovo.

From Asylum Policy Instructions from Border and Immigration Agency:

Article 8 medical claims
Article 8 private life may also be raised in the
context of a medical claim.
The issue in an Article 8 foreign case is whether
return will result in a real
risk of a flagrant denial of an applicant’s
Article 8 rights in the country of
return, usually in respect of the
applicant’s right to physical and moral
integrity.

In most cases, Article
8 will add little to Article 3 – as the House of Lords
said in Razgar, “it is
not easy to think of a foreign health care case which would fail
under
Article 3 but succeed under Article 8.
When considering whether return would
give rise to a real risk of a
flagrant breach of Article 8 (see the API
Article 8 ), decision makers
should take into account similar factors as for
an Article 3 medical claim.
Unlike Article 3, Article 8 is a qualified right,
which means that
interference with the rights set out in Article 8(1) may be
permissible in
certain circumstances. For a discussion of the issues
surrounding the
right to private and family life, see the API on Article

8.HOW THE UK BORDER AGENCY’S WORK IS
AFFECTED BY THE HUMAN RIGHTS
ACT

Section 6 of the Human Rights Act makes it unlawful for a
public
authority (such as a Government department) to act (or fail to act) in
a
way which is incompatible with a Convention right, unless, as the result
of
a provision of primary legislation, it could not have acted
differently.
It should be remembered that the Human Rights Act does not
create new
rights, rather it enables individuals to rely on existing ECHR
rights before
UK courts. The UK Border Agency has for many years had regard
to
ECHR rights in considering asylum claims, because of the
UK’s
international obligations under the ECHR.
Experience suggests that
the Convention rights most likely to be raised
alongside an asylum claim or
to be inherent in such a claim are Articles 2,
3, 8 and 14. Article 2, 3 and
14 together with Protocol 13 (death penalty),
are dealt with below. For
information on Article 8, please refer to the
Article 8 API.
Of course,
applicants will sometimes raise other Articles and the full text
of the other
ECHR Articles is given in Annex A.
Further Guidance on how to deal with
specific articles may be
sought from a senior caseworker.

Non-derogable rights - These are rights which a State must
guarantee, without exception, at
all times, including in time of war or
other public emergency. Rights which
fall into this category are:
Article 3 (prohibition of torture, inhuman or
degrading treatment or
punishment), Article 4(1) (prohibition of slavery),
and Article 7 (no
punishment without law). Article 2 (right to life) also
falls within this
category, except that a derogation is permitted in one
limited area -
deaths resulting from lawful acts of war. Nor is any
derogation
permitted to Protocol 13 (abolition of the death
penalty).

Other absolute rights -
All the non-derogable rights are absolute
in
that there are never any circumstances which justify the State in
some
way limiting or curtailing those rights. Some of the other
Convention
rights contain elements which are also absolute in peace time -
for
example, Article 5 includes certain rights which must be provided to
a
person arrested or detained; Article 6 sets out some standards on
a
right to a fair trial which must be adhered to; and Article 9
provides
an unlimited right to freedom of thought, conscience and
religion
(although there are limitations on how a person’s religion or
beliefs
are manifested). Rights in this category are absolute except that
in
times of war or other public emergency threatening the life of
the
nation they may be “derogated from” in limited ways, as provided
for
by Article 15 of the Convention.

Rights with defined limitations -

Other rights such as the right to
marry and found a family (Article 12) and
parts of Article 5 (right to
liberty and security) can be limited in the
circumstances defined in the
Convention itself. For example, Article 12 is
qualified by being subject
to national laws governing these rights if, for
example, the national
law prohibited marriage until a person was 21 years old
that would
not be a breach of Article 12.

Qualified rights -
These rights
include the right to respect for
private and family life (Article 8), the
right to freedom of expression
(Article 10) and the right to the peaceful
enjoyment of property
(Article 1 of Protocol 1). Interference with these
rights is permissible
subject to various qualifications. These include the
requirement that
any interference must be in accordance with the law, be
necessary in a
democratic society (i.e. meets a pressing social need and
is
proportionate) and be related to one or more of the permissible aims
as
set out in the relevant Article.
Link: Judgments - Beoku-Betts (FC) (Appellant) v Secretary of State for the Home Department.
Link: Judgments - Chikwamba (FC) (Appellant) v Secretary of State for the Home Department Chikwamba (FC) (Appellant) v Secretary of State for the Home Department
Link: Periods of discretionary leave granted to those with marriage-based
article 8 claims
Link: Consideration under Article 8 of the HRA

Article 2

6.1. General
Article 2(1) states that:
" Everyone's right to life shall be
protected by law. No one shall be
deprived of his life intentionally save in
the execution of a sentence
of a court following his conviction of a crime
for which this penalty
is provided by law."
However, under Article 2,
there are certain situations where an authority
will not be considered to
have breached a person's right to life. These are
set out in Article 2(2)
which states that:
" Deprivation of life shall not be regarded as inflicted
in
contravention of this article when it results from the use of
force
which is no more than absolutely necessary:
(a) in defence of any
person from unlawful violence;
(b) in order to effect a lawful arrest or to
prevent the
escape of a person lawfully detained;
(c) in action lawfully
taken for the purpose of quelling a
riot or insurrection."
In practice,
the limitations in Article 2(2) are unlikely to apply in
individual human
rights claims.

6.2. Consideration of Article 2 issues

There is limited
caselaw on the extent to which the UK’s obligations
might be engaged by the
return of a person to a country where it is
alleged that their right to life
would be threatened. However, we would
not normally seek to return a person
to a country where there are
substantial grounds for believing that there is
a real risk they would be
unlawfully killed either by the State or through
the State being unable or
unwilling to protect them.
Applicants who face a
serious risk to life or person arising from an
unlawful killing may, subject
to certain exclusions, be eligible for a grant
of Humanitarian Protection
(see the definition of serious harm (paragraph
339C of the Immigration
Rules). See also API on Humanitarian
Protection, or API on Discretionary
Leave if the applicant is
excluded from Humanitarian Protection).
Note
that Article 2 does not apply in medical and suicide claims, in which
death
would not be caused by lawful or unlawful killing.

Article 3
General
Article 3 states that:

“No one shall be subjected to torture or to
inhuman or degrading
treatment or punishment."
• Article 3 is an absolute
right, i.e. it cannot be balanced against
competing interests like some of
the other ECHR rights and it
applies even in times of war or other public
emergency.
• The absolute nature of Article 3 has led to a high threshold and
to
reach the Article 3 threshold, ill treatment must attain a
minimum
level of severity and involve actual bodily injury or
intense
physical or mental suffering. Where treatment humiliates
or
debases an individual, it may be characterised as degrading
and also
fall within the prohibition of Article 3. The same
threshold will apply in
Humanitarian Protection cases.
• The UK’s obligations under Article 3 apply
irrespective of any
reprehensible/criminal conduct on the part of the
applicant. The
applicant’s conduct may affect the type of leave granted or
whether
Humanitarian Protection is granted (see paragraph 339D of
the
Immigration Rules and section 8 of the Humanitarian
Protection
API).
As set out above, all asylum claims should be treated as a
Humanitarian
Protection and/or implied Article 3 foreign case and if the
asylum claim is
refused, consideration should be given to whether return
would expose
the applicant to serious harm or treatment that would otherwise
be
contrary to Article 3.
UK Border Agency asylum decision-makers will
therefore need to
consider and address Humanitarian Protection and Article 3
explicitly in
the Reasons for Refusal Letter.

Link: Applications raising article 3 medical grounds

Important Links

Immigration Control.
Immigration Appeals: Selected Reports of Decisions of the House of ... - Google Books Result.
Brides without Borders.
HUMAN RIGHTS APPEALS
Asylum policy instructions
http://freemovement.wordpress.com/category/cases/tribunal-overturned-again/

9 comments:

  1. http://freemovement.wordpress.com/category/cases/tribunal-overturned-again/

    ReplyDelete
  2. Hi

    I found this board very interesting I wonder if someone could please help me.

    I would like to invite my fiancée to come to England with the intension of getting married soon after she arrives to UK. However, because I am severely disabled and unable to work, I live on Disability living allowances and other related benefits.

    I am a permanent UK resident (ILR) over 23 years now and have no family or any other relatives in the UK, and I really need someone to live with and share life together.

    Is there any easy process of achieving the above? Can someone please help and guide me to the process.

    Much appreciated

    Kind Regards
    Ben Adam.
    email: idybel@hotmail.com

    ReplyDelete
  3. hi
    i am a Pakistani citizen who was in uk for last 8 years on a student visa.while i was there i had a daughter who is 5 years now.now back in Pakistan with no visa.ive applied for a visit visa so that i can attend my court proceedings for contact order for my daughter.i applied for a contact order while i was in uk but was unable to attend the last court proceedings because my father suffered a heart attack so had to come to Pakistan.and now ive applied again to the uk courts and got a court hearing date which ive also included in my visa application.my daughter is a British citizen living with her mother and the mother despise me seeing my daughter.i was not married to the mother but my names on the birth certificate.can any one who has been in the same situation tell me what are the chances of me getting my visa because i cant bear to live without my little princess. any comments can be posted on hassan786_99@yahoo.com

    ReplyDelete
  4. What I have read about spouse visa in UK is that if the foreign husband or wife is already living in the UK on a valid long term visa including of work visa or student visa, such a person is legally eligible for applying for spouse visa. In such a situation, either he can apply or the spouse living outside the UK can apply for it at the concerned British Consulate, Embassy or High Commission.

    ReplyDelete
  5. This comment has been removed by the author.

    ReplyDelete
  6. Interesting. I had never heard of a spousal visa until today. I know your article focuses on spousal visas for the UK, but do you know where to get a spousal visa in Florida, USA?

    ReplyDelete
  7. These terms and conditions are very helpful for those who are applying to marriage in UK. Those candidates should apply for UK Marriage Visa.

    ReplyDelete

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