Human Rights Applications (ECHR) in UK Immigration

A human rights application asks the Home Office to grant, extend or vary leave because refusing it or removing you from the UK would breach your rights under the European Convention on Human Rights (ECHR), as applied in UK law by the Human Rights Act 1998. In immigration law, this most often concerns the right to respect for family and private life (Article 8) and the prohibition on torture and inhuman or degrading treatment (Article 3). If a “human rights claim” is refused, applicants will usually have a right of appeal to the First-tier Tribunal.

What is a Human Rights Claim in UK Immigration Law?

Section 113 of the Nationality Immigration and Asylum Act 2002 provides a definition of a human rights claim:

“Human rights claim” means a claim made by a person to the Secretary of State at a place designated by the Secretary of State that to remove the person from or require him to leave the United Kingdom or to refuse him entry into the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 (c. 42) (public authority not to act contrary to Convention.

In simple terms, it is a claim that a refusal or removal would be unlawful because it is incompatible with your ECHR rights. The Home Office must assess the substance of the claim, consider all relevant evidence (including the best interests of any child affected), and decide whether a grant of leave is required under the Immigration Rules (e.g., Appendix FM or Appendix Private Life) or, if the Rules are not met, whether leave should be granted outside the Rules to avoid a rights breach. If refused, most applicants have a statutory right of appeal.

What are the Common ECHR rights relied upon in Immigration Applications?

Article 3 Prohibition of torture

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

Article 4 Prohibition of slavery and forced labour

1. No one shall be held in slavery or servitude.
2. No one shall be required to perform forced or compulsory labour.
3. For the purpose of this Article the term “forced or compulsory labour” shall not include:

(a) any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during conditional release from such detention;
(b) any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service;
(c) any service exacted in case of an emergency or calamity threatening the life or well-being of the community;
(d) any work or service which forms part of normal civic obligations.

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.

Which Immigration Applications are considered Human Rights Applications?

Applications made within the Immigration Rules

The relevant applications are those made under:

• Appendix Long Residence, where the application has been varied and is considered under partner, parent, or child under Appendix FM (family life) or under Appendix Private Life
• Appendix Private Life
• Part 11 (asylum claim)
• Appendix Family Reunion (Sponsors with Protection)
• Appendix Child Relative (Sponsors with Protection)
• Appendix Adult Dependent Relative
• Appendix Gurkha and Hong Kong military unit veteran discharged before 1 July 1997, where the applicant is 18 years of age or older and is applying as a dependent child
• Appendix Armed Forces, where the applicant is a partner or child under Appendix HM Armed Force and the armed forces sponsor is a British Citizen or has at least 4 years’ reckonable service in HM Forces at the date of application
• Appendix FM: family members
• Appendix Settlement Family Life

Applications for leave to remain outside the rules

Outside-the-Rules applications are generally used where no suitable route under the Immigration Rules exists, such as a serious medical case meets the high Article 3 (prohibition of inhuman or degrading treatment)  threshold. You can read more about Article 3 medical claim in our Leave outside the rules page.

How the Home Office decide whether the application is a human rights claim? 

In order to decide whether the application is one for a human rights claim, the decision maker will consider the following questions:

• does the application say that it is a human rights claim?
• does the application raise issues that may amount to a human rights claim even though it does not expressly refer to human rights or a human rights claim?
• are the matters raised capable of engaging human rights?

Home Office caseworkers do not rely solely on whether an applicant has ticked a box or written “this is a human rights claim.” Forms are multipurpose and may not ask that question directly. What matters is a particularised case: the application should set out the concrete reasons why removal or refusal would breach a specific ECHR right (for example, private life, family life, or Article 3 medical risk), supported by targeted evidence. A bare assertion such as “this is a human rights claim” or “refusal would breach Article 8” is not enough. Even if the applicant does not use human-rights language, caseworkers must consider whether the facts engage Convention rights on their face.

The fact that an applicant mentions human-rights issues does not of itself convert a case into a “human rights claim.” Following MY (Pakistan) [2021] EWCA Civ 1500, where the underlying route does not inherently engage Article 8 (for example, a Skilled Worker application), the Secretary of State can require the applicant to raise any human-rights case on the correct human-rights form, and the “one-application-at-a-time” rule will apply. 

By contrast, applications made under Appendix FM are, by design, treated as human-rights claims. So, if a spouse/partner application under Appendix FM is refused, for example, because the financial requirement is not met, that refusal is ordinarily a refusal of a human-rights claim and therefore carries a right of appeal to the First-tier Tribunal on human-rights grounds. The Tribunal will then assess the case under the Rules and, where relied upon, the “exceptional circumstances” threshold.

Contact Our Human Rights Solicitors

To identify whether your immigration application has human rights elements, speak to our immigration solicitors on 020 8088 2555 or complete our enquiry form.