Law:
Human Rights Article 3:
The Act gives effect to the human rights set out in the European Convention on Human Rights. Article 3 – the right not to be tortured or treated in an inhuman or degrading way is one of the rights protected by the Human Rights Act.
Article 8 is a qualified right, which means that it can be interfered with by a public authority, such as the Home Office, in certain circumstances. … However, a public authority may only interfere with a person’s right to respect for private and family life if the interference is proportionate.
The applicants fear that they will face inhuman treatment by not having enough food and security if they were to return back to Sri Lanka. The applicants fear that they will be exposed to:
1. malnutrition and dehydration, and
2. a country where there is a real risk of torture, inhuman or degrading treatment.
Leave To Remain Outside the Immigration Rules (LOTR) Guidance
The Home Office policy document entitled Leave outside the Immigration Rules guidance, Version 1.0, dated 27 February 2018 provides: “Guidance for decision makers considering leave outside the Immigration Rules, on the basis of compelling compassionate grounds (grounds that are not related to family and private life, medical or protection matters)”.
“In all family and private life cases, the decision maker will consider whether the Immigration Rules are otherwise met and if not, will go on to consider whether there are exceptional circumstances which would render refusal a breach of ECHR Article 8 because it would result in unjustifiably harsh consequences for the applicant or their family. Each application is considered on its merits and on a case-by-case basis taking into account the individual circumstances. LOTR on compelling compassionate grounds may be granted where the decision maker decides that the specific circumstances of the case includes exceptional circumstances. These circumstances will mean that a refusal would result in unjustifiably harsh consequences for the applicant or their family, but which do not render refusal a breach of ECHR Article 8, Article 3, refugee convention or other obligations.
The Home Office’s LOTR guidance reads:
“The period of LOTR granted should be of a duration that is suitable to accommodate or overcome the compassionate compelling grounds raised and no more than necessary based on the individual facts of a case. Most successful applicants would require leave for a specific, often short, one-off period. Indefinite leave to enter or remain can be granted outside the rules where the grounds are so exceptional that they warrant it. Such cases are likely to be extremely rare. The length of leave will depend on the circumstances of the case. Applicants who are granted LOTR are not considered to be on a route to settlement (indefinite leave to remain) unless leave is granted in a specific concessionary route to settlement”.
a) Private Life:
“The refusal of the visa has resulted in the Appellant’s private life prejudiced in a manner sufficiently serious as to amount to a breach of fundamental rights protected by Article 8. Under the European Convention on Human Rights, the Appellant has the right to private life; he cannot be denied this right as he has every right to enjoy his private life in the United Kingdom”.
b) Principle Of Proportionality
“The Respondent is required to exercise its discretion under the principle of proportionality as Human Rights Act breaches are involved. In general terms, the concept of proportionality requires a balancing exercise between, on the one hand, the general interests of the community and the legitimate aims of the state and, on the other, the protection of the individual’s rights and interests. The relevant rights are the rights to a private and/or family life under Article 8 of the European Convention on Human Rights as enacted in English law under the Human Rights Act 1998 (“HRA”).
c) Article 8 Ground
There is interference in the Appellant’s private life. In the premises, the Respondent is acting unlawfully. Further or alternatively, the Respondent’s discretion should have been exercised differently. Further or alternatively, the Respondent has failed to make any or adequate enquiries which could lead it to conduct a test of proportionality in relation to the Appellant’s Article 8 rights.”
d) Outside the Immigration Rules Grounds
Under the case Law and Article 8 rights, as per Syed and Patel [2011] EWCA Civ. 1059 at [35]:
In exercising her powers, whether within or outside the rules of practice, the Secretary of State must have regard and give effect to applicants’ convention rights ….The immigrant’s Article 8 rights will be (must be) protected by the Secretary of State and the court, whether or not that is done through the medium of the Immigration Rules.
Submission:
It is submitted that the applicants applications are considered under the exceptional circumstances and the applications are allowed by using your discretionary powers in favour of the applicants, due to the serious hardships the applicants may be facing upon their return to their Home Country. You are also requested to consider Article 3 and Article 8 of Human Rights.
- Monday
- 9:00 am – 5:00 pm
- Tuesday
- 9:00 am – 5:00 pm
- Wednesday
- 9:00 am – 5:00 pm
- Thursday
- 9:00 am – 5:00 pm
- Friday
- 9:00 am – 5:00 pm
- Saturday
- Closed
- Sunday
- Closed
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