Human Rights Visa UK: Complete Application Guide

What Is a Human Rights Visa UK?

First of all, understand that there is no standalone visa category officially called a ‘human rights visa’ in the UK. However, when a foreign national applies for leave to remain in the UK on human rights grounds, it is commonly referred to as a visa application on the basis of a human rights claim or, in colloquial terms, as a human rights visa UK.

There are two broad categories under which a human rights visa UK can be made: a) prohibition of torture (Article 3 of ECHR) and b) right to respect for private and family life (Article 8 of ECHR). If a foreign national can prove that they will be at risk of persecution or physical harm if they return to their home country, they may apply to remain in the UK. This is known as an asylum claim.

On the other hand, if a foreign national can prove that they have spent a significant amount of their life in the UK and/or have started a family in the country, they may apply to remain on the basis of private and family life. Both these scenarios (i.e., an asylum claim and a claim based on private and/or family life scenario) come under the human rights visa UK.

Legal Framework Behind Human Rights Applications

The legal framework which provides the basis for a human rights visa application in the UK consists of:

• Articles 2, 3, 8 and 14 of the ECHR as well as Protocol 13
• UK Human Rights Act 1998
• Section 55 of the Borders, Citizenship and Immigration Act 2009, particularly when children or applicants with children are involved

Article 2 (‘right to life’) of ECHR states that “everyone’s right to life shall be protected by law” save certain circumstances (e.g., a court sentence of death penalty, protective action from unlawful violence, etc.). Article 3 (‘prohibition of torture’) upholds that “no one shall be subjected to torture or to inhuman or degrading treatment or punishment”, while Article 8 (‘right to respect for private and family life’) maintains that “everyone has the right to respect for his private and family life, his home and his correspondence”.

Moreover, Article 14 (‘prohibition of discrimination’) of ECHR underlines that all these human rights and freedoms shall be secured “without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”. Protocol 13 acknowledges that everyone’s right to life has “a basic value in a democratic society”.

While all the above articles and protocols provide the theoretical ground for a human rights visa application, Articles 3 and 8 are the most relevant. These two articles have been incorporated into UK immigration law by the Human Rights Act 1998, which is officially stated to be “An Act to give further effect to rights and freedoms guaranteed under the European Convention on Human Rights”.

In addition, the Home Office guidelines also instruct the caseworkers dealing with human rights visa applications that they should also pay due regard to Section 55 of the Borders, Citizenship and Immigration Act 2009 if any children or people with children are concerned. This is because the said section places an obligation on the Secretary of State and the Home Office to safeguard and promote the welfare of children in the UK while carrying out immigration, asylum and nationality functions.

Who Can Apply for a Human Rights Visa UK?

You may be eligible to apply for a UK visa on human rights grounds on the basis of:

• Your private life in the UK (e.g., you have been a long-term resident of the UK and have no familial, social or cultural ties to your country of origin)
• Your family settled in the UK
• Medical grounds, provided you can prove that in your home country you will not be able to receive qualified treatment for your condition or the required medication, or a return would somehow worsen your condition
• Unique, compassionate and compelling circumstances
• Your status as a stateless person (i.e., you are currently residing in the UK and are not recognised as a citizen of, or unable to live permanently in, any other country)
• Your asylum claim in the UK

Article 8 – Family and Private Life Explained

Per Article 8, you can apply for a UK visa based on your private and family life provided:

• You are already living in the country, AND
• You are a minor (i.e., under 18 years of age) who have lived in the UK for at least seven years on a continuous basis, and it would be unreasonable to expect you to leave, OR
• You are aged between 18 and 24 years, who have lived in the UK continuously for more than half your life, OR
• You have been living in the UK continuously for 20 years
• You are an adult who have spent less than 20 years in the UK but would have very significant problems living in your home country
• You were born in the UK to a parent who has either permission to stay in the UK on the basis of their private life or is currently applying for it

You can also apply for a UK visa as a parent of a child who fulfils any of the following criteria:

• A British citizen
• An Irish citizen
• An EEA/Swiss citizen with a pre-settled status in the UK
• Any other foreign national who is settled in the country
• Has lived in the UK continuously for seven years and thus it would be unreasonable for the child to leave the country

Likewise, you can also apply on the basis of family life if you are a spouse/partner of a British/Irish citizen or someone settled in the country, but are unable to meet the financial requirements for a regular spouse visa.

Note that Article 8 is a qualified right unlike Article 3. The Home Office will do a balancing test and thoroughly weigh the state’s interest in controlling immigration as well as protecting the country’s economic well-being and national security against your individual right to maintain your private and family life in the UK. It will also be reviewed whether or not you meet the Immigration Rules otherwise (e.g., there are no records of criminal activity or immigration abuse against you, etc.).

The caseworkers will minutely inspect whether a visa refusal will result in a breach of Article 8 of ECHR. If there is no compelling evidence that a visa refusal will result in harsh or unfair conditions for your private life or your family, your application is likely to be refused.

Article 3 – Protection from Torture or Inhuman Treatment

To be eligible to claim asylum in the UK per Article 3 of ECHR, citizens from foreign countries must be able to prove that they are unable to live safely in their countries of origin due to the fear of persecution, because of their race, religion, nationality, political opinion, sexual preference, or any other issue that puts them at risk because of the social, cultural, religious or political circumstances there.

Foreign nationals may also seek asylum in the UK in case their country is at war, or undergoing internal armed conflict, and they cannot get protection from the authorities in their home country in such a scenario.

However, your asylum claim in the UK will not be considered if you:

• Are an EU national
• Have travelled to the UK through a ‘safe third country’
• Have a connection to a safe third country where you could claim asylum

A ‘safe third country’ generally refers to a country which the asylum seeker is not a citizen of, where they would not be harmed in, and which will not deport them to another country where the asylum seekers might be harmed.

Last but not the least, you must be physically present on British soil to claim asylum in the UK. You may make an asylum application at your port of entry, and UK Border Force officers will carry out the screening interview, before referring your claim to UK Visas and immigration (UKVI).

Leave Outside the Rules and Discretionary Leave

Certain human rights visa cases may not fall under any clear-cut categories (e.g., asylum, humanitarian protection, family or private life, medical grounds, etc.). However, there may be such compelling and compassionate circumstances involved in such cases that refusing the concerned persons to enter or remain in the UK (including granting indefinite leave to remain or ILR) may result in breach of ECHR principles.

In such scenarios, the applicants may be granted leave outside the Immigration Rules (LOTR). If the situation is so rare and unique that both leave within immigration rules or LOTR are not applicable but deporting the applicant (or making them voluntarily return) to their home country will certainly result in gross human rights law violations, Discretionary Leave (DL) may be granted provided the application is made from within the UK.

While there are subtle differences between the LOTR and DL policies and respective caseworker guidelines, note that such rules are very case-specific. A final decision will be made only after all other avenues are exhausted, provided your case successfully passes a rigorous scrutiny by the Home Office.

How to Apply for a Human Rights Visa UK

The application process for a human rights visa UK will vary depending on whether you are applying for asylum (Article 3) or applying on the basis of private and family life (Article 8). We have discussed the processes for both in this article, adopting a step-by-step approach for your easy reference.

Step 1 – Check Eligibility Before Applying

To begin with, you will have to ensure that you are eligible to enter or remain in the UK on human rights grounds. It is important to note that the UK government has an explicit policy of deterring people from seeking asylum in the country. Plus, given the unprecedented rise in net migration numbers in the recent past, successive UK governments have put in place stricter policies to fight immigration system abuse.

So before proceeding with your human rights visa application, make sure you meet the eligibility criteria, have substantial evidence to convince the Home Office of the genuineness of your claim, and have no negative criminal or immigration history that may jeopardise your claim.

We strongly recommend consulting with a reputed and experienced immigration lawyer starting from right this stage to increase your chances of a positive outcome.

Step 2 – Choose the Correct Application Form

Once you have established that you meet the eligibility requirements, you must choose the correct form applicable in your case. If you are applying to remain in the UK on the basis of a family or private life, you will need to use the FLR (FP) form. Likewise, use the FLR (M) form to remain in the UK as the partner or dependent child of someone who is settled here, who is a refugee, or who is under humanitarian protection.

You must use the FLR(HRO) form to apply for an extension of your stay in the UK on the basis of a human rights claim (including medical grounds or ill health), to apply for permission to stay in the UK for a reason not covered by the Immigration Rules, or for an immigration application not covered by another form. The FLR(HRO) form can also be used to apply for Temporary Permission to stay as a victim of Human Trafficking or Slavery, although domestic workers who are victims of slavery or human trafficking must use form FLR (IR) to apply.

However, you cannot use these forms to apply for asylum or international protection. Instead, you will have to start with registering your asylum claim.

Step 2A – Register Your Asylum Claim and Attend a Screening Interview

If you are seeking asylum in the UK based on Article 3 of ECHR, you will instead be required to discuss your circumstances with a UK immigration officer first. This meeting is called a ‘screening’, during which you must register your asylum claim.

The screening may take place at your port of entry, if you claim asylum as soon as you arrive in the UK. Alternatively, you may also be screened after arriving in the UK if you become eligible for asylum. During your screening, the UK immigration officer will:

• Take your photo and fingerprints for biometrics purposes
• Discuss your details (e.g., who you are, where you are from, etc.)
• Ask why you are seeking asylum in the UK

Step 3 – Required Documents for a Human Rights Application

Given that the circumstances of each individual human rights visa application vary widely, there is no so-called specific list of required documents. The thumb rule is to collect enough documentary evidence that will prove the substance and genuineness of your situation and your claim to enter or remain in the UK on human rights grounds.

Such documents may include (but are not limited to):

• Documents that prove your identity and nationality (e.g., identity cards, birth certificate, marriage certificates, school records, etc.)
• Your passport and/or any other travel documents
• Your relationship evidence (e.g., birth or marriage certificates) when applying on the basis of family life
• Evidence of long residence in the UK if applying on the basis of private life
• Medical reports or treatment details if applying on medical grounds
• Proof of financial difficulties if asking for a fee waiver, or if you are applying as a spouse/partner and cannot meet the financial requirements
• Any document that can establish the genuineness of your claim for asylum in the UK, for example:
  • Your own testimony
  • Witness statements
  • Any published article in the national or international media about your case, or about the general situation in your country
  • Medical reports and/or evidence of same-sex relationships if you are claiming asylum as a member of the LGBT community
  • Membership of any organisations related to your racial identity, religious belief, political opinion or gender identity, or evidence of any activism in support of your cause
  • Information regarding any adverse laws, policies and/or customs in your home country against your racial identity, religious belief or practice, political or social opinion, gender identity or sexual orientation, etc.

Step 4 – Application Fees & Fee Waivers

You will not be required to pay any fees (i.e., visa processing fee, immigration health surcharge or biometric enrolment fee) if you are applying for leave to remain based on Article 3 of ECHR, whether as part of an asylum claim, a humanitarian protection claim, or on the basis of medical grounds.

If you are applying based on Article 8 of ECHR, you may have to pay a visa fee of £1,407 as well as the immigration health surcharge of £2,587.50 per person for 30 months.

You may apply for a fee waiver if you can credibly demonstrate you cannot afford to pay the fee (or if paying the fee would result in the needs of a child not being met) when applying for leave to remain in the UK on the basis of family or private life:

• As a spouse/partner, parent or dependent child
• On human rights grounds, including cases where previously LOTR or DL was granted
• To extend your leave after being refused asylum or humanitarian protection and granted DL instead
• To extend your leave if you were initially granted leave as a trafficking or slavery victim

Note that you will have to apply for a fee waiver before submitting your FLR (HRO) application.

Step 5 – Submitting the Application

Applying using FLR forms is an online process. You will be going through the following steps:

1. Create an account with your email ID on the Home Office website to get started
2. Have all your supporting documents and other relevant information ready with you so as to answer the questions on the online form completely and accurately
3. Start filling in the online application form. You can save your form and complete it later, if required
4. Once you have completed the online form, submit the same along with scanned copies of required supporting documents
5. Pay the required visa processing fees either by a credit or a debit card, unless exempt

People who are not confident using a computer or mobile device or do not have internet access may get help, known as ‘assisted digital support’, with completing the forms online. You will also be applying for an eVisa as part of your application process.

Note that, you will have to prove your identity as part of your UK family visa application process. If you are eligible to prove your identity through the ‘UK Immigration: ID Check’ app, you can use the same to scan your required documents to prove your identity. Otherwise, you will have to book an appointment with your nearest UK Visa and Citizenship Application Services (UKVCAS) service point.

Step 5A – Procedures After Your Asylum Screening

After your screening interview, the Home Office will review your case and decide whether it can be considered in the UK. If yes, then they will send you an asylum registration card (ARC) to your UK address, and assign a caseworker to your case. You may also receive an asylum questionnaire to provide further details regarding your claim.

If there is enough evidence gathered from your screening and your questionnaire (if any), you may be granted protection status in the UK without having to attend an asylum interview. Otherwise, your caseworker will schedule an asylum interview during which you will have to explain how you were persecuted in your home country and why you are afraid to go back.

If your asylum application is successful, you might be granted refugee status in the UK. If you do not qualify for refugee status but cannot return to your own country for valid reasons, you may get humanitarian protection.

If your caseworker decides that you do not have any valid reason to stay in the UK, the Home Office will ask you to leave the country. If you do not leave voluntarily, you will be detained and removed from the UK. You may be able to appeal against the decision.

How Long Does a Human Rights Visa Take?

While the Home Office provides a general timeframe of three months to process a human rights visa UK application, in reality the timeline will vary widely depending on several factors, such as:

• Whether you are asking for asylum/humanitarian protection or leave to remain on the basis of private and family life
• The complexities involved in your case
• Evidence requirements
• Home Office caseload
• Any subsequent changes in circumstances since you made your application, etc.

What Happens If Your Application Is Refused?

If your human rights visa application on the basis of private/family life is refused, the Home Office will send you a decision letter detailing the reason(s) thereof. It will also inform you whether you can appeal that decision or ask for an administrative review. Likewise, if the Home Office refuses your asylum claim, they will let you know whether you can appeal that decision.

In the UK, appeals are heard by the First-tier Tribunal (Immigration and Asylum Chamber). After hearing your case and/or reviewing your appeal form and supporting documents, they may allow your appeal. Alternatively, they may dismiss your appeal and uphold the Home Office’s original refusal decision.

If you have lost your appeal but believe that there has been a legal mistake with the tribunal’s decision, you can request for permission to appeal to the Upper Tribunal (Immigration and Asylum Chamber). If your appeal is rejected by both tribunals, you have the option to go to the Court of Appeal and then the Supreme Court.

How Can IAS Help?

Claiming leave to remain in the UK based on human rights grounds can be a fairly complex and time-consuming process. Considering the UK government’s policies to deter asylum seekers in the country or its present agenda to curb migration figures, along with the rigorous requirements from the Home Office with regard to documentary evidence supporting your claim, we advise that you speak with an immigration lawyer as soon as you decide to apply for a human rights visa UK.

If your human rights visa application is refused by the Home Office, you may have a chance to appeal that decision or seek an administrative review. Either of these options are also quite complex, and will demand legal advice and support at every step including preparing and representing your case at the tribunals or in front of the courts.

At IAS, we have a team of highly experienced immigration and asylum lawyers who can guide and support you if you want to apply for a UK visa based on human rights grounds. We also offer emergency support in case you have been detained, and/or provide a same-day advice session if you have an immigration emergency.

Dial +44 (0)333 414 9244 or message us online today to book a consultation with our legal experts.