UK immigration application and any appeal are directly governed by the UK Immigration law and immigration rules. However there are exceptions when family members and dependents are concerned, in which case Human Right Acts comes into picture.
Human Right Act 1998 was introduced as a mechanism to incorporate rights and liberties by the European Convention on Human Rights in Domestic law. From the perspective of immigration, Article 8 is of significant importance compared to all other Articles including Articles 2 and 3 which talks about the right to life and the right not to be subjected to inhuman or degrading treatment. Article 8 of the Convention rights attempts to address the growing number of issues and protect range of interest which does not fit into other Convention categories.
Article 8 of the Convention rights touches base with:
- Private life
Significance of Article 8 in immigration
Prior to introduction of Article 8, if you do not have clear visa right to stay, but have a British partner or children, you were permissible to make discretionary leave to stay in the UK without the need to rely on Human Rights law. If successful you would be granted 3 years leave to remain in UK. If you had been staying in UK illegally, you could apply for long residence after 14 years and would be granted indefinite leave to remain. Things have changed entirely now and you are no longer permitted to apply under these provisions, except for some very exceptional reasons.
Article 8 and immigration rule
Since July 2012, the procedure for making an application to remain in the UK has changed on the basis of Article 8. Article 8 has been incorporated into UK Immigration Rules and so an application can be made now by a person without immigration status in the UK, provided they have British or settled partner or British children or children who are not British but have lived in the UK continuously for the period of 7 years or more.
If you are successful under the Human Right Act provisions, you will not be eligible for settlement until after 10 years. It is best that you should leave the UK and apply from overseas to re-enter the UK through proper route as a spouse or a partner. This will make you eligible for settlement after 5 years.