Human Rights Appeals Barristers

A human rights claim is a claim that requiring you to leave the UK, or refusing you entry, would breach the Human Rights Act 1998. Most are based on Article 8 of the European Convention on Human Rights, the right to respect for private and family life, though some rely on Article 3, which prohibits inhuman or degrading treatment, including in serious medical cases. The Home Office treats many applications as human rights claims, for example applications as a partner or parent under Appendix FM, or on the basis of long residence under Appendix Private Life.

When a human rights claim is refused, section 82 of the Nationality, Immigration and Asylum Act 2002 gives a right of appeal to the First-tier Tribunal (Immigration and Asylum Chamber). The only ground of appeal is that the decision is unlawful under section 6 of the Human Rights Act. The Tribunal does not simply ask whether you met the Immigration Rules, but whether meeting them, or how close you came, makes refusal disproportionate. In practice, showing that you satisfy the Rules is often decisive, because the public interest in refusal falls away.

Where the Rules are not met, the Tribunal carries out a proportionality balance. It must give weight to the public interest considerations in section 117B of the 2002 Act: that immigration control is in the public interest, that people should speak English and be financially independent, and that little weight should be given to a private life, or a relationship with a partner, formed while you were in the UK unlawfully or with precarious status. Section 117B(6) is important for parents: where you have a genuine and subsisting parental relationship with a qualifying child, and it would not be reasonable to expect the child to leave the UK, the public interest does not require your removal.

Direct Access works well for many human rights appeals, which tend to turn on documents and family evidence that you are best placed to collect. Your Barrister advises on the tests, drafts the statements and skeleton argument, and represents you at the hearing; you lodge the appeal and handle Tribunal correspondence. Legal aid is generally not available for Article 8 immigration cases unless exceptional case funding is granted, which is one reason privately funded Barristers are often instructed.

1. 1

   Merits Review

   Your Barrister reads the refusal letter and your application and identifies which requirements of the Rules the Home Office says you failed, whether that finding is right, and what Article 8 or Article 3 arguments remain.

2. 2

   Lodging the Appeal

   You lodge the appeal with the First-tier Tribunal within 14 days of the decision being sent if you are in the UK. Your Barrister drafts short grounds, which are expanded later in the appeal skeleton.

3. 3

   Evidence Plan

   Your Barrister gives you a targeted list: the documents that prove each fact in dispute, any expert or social work evidence worth obtaining, and the witnesses whose evidence matters most.

4. 4

   Appeal Skeleton

   Following the Tribunal's directions, your Barrister drafts the skeleton argument. The Home Office then reviews its decision and may withdraw it, so a well-argued skeleton can resolve the case without a hearing.

5. 5

   Hearing

   Your Barrister represents you before the Immigration Judge, presents your family's evidence, responds to the Presenting Officer's questions on genuineness and obstacles, and makes submissions on proportionality.

6. 6

   Outcome

   If you win, the Home Office normally grants leave in line with the judgment. If you lose, your Barrister advises whether there is an arguable error of law to take to the Upper Tribunal.