Human Rights and Asylum Applications
Human rights law and asylum law are connected, but there are differences between them. Human rights law emanates from the European Convention on Human Rights (ECHR) and asylum law emanates from the UN Refugee Convention. The UN Refugee Convention was written specifically to address the issues of asylum and refugees, whereas the ECHR is a broader document which covers a range of different subjects.
The most important parts of the ECHR from the immigration point of view are Article 8 (the right to private and family life) and Article 3 (which protects against torture and degrading treatment).
Applicants in the UK (and, in some cases, outside the UK) may be able to make applications to the immigration authorities to remain in or come to the UK on the basis of Article 8: for example on the basis that otherwise their family life would be severely disrupted. Article 8 does not provide an absolute right to family life, but it does nonetheless provide important rights.
Article 8 also provides rights about “private life”, which means the social aspects of a person’s life in the UK which are different from family life, eg work, study, religious participation, social network.
In other situations, applicants may also be able to make an application under Article 3, for example on the basis that they could be executed, tortured, abused or unfairly imprisoned by the government of their home country or its agents. Article 3 provides stronger rights that have an absolute character rather than a qualified character.
Asylum applications have similarities with ECHR Article 3 applications (indeed, many applicants may make applications under both instruments). A person can only claim asylum when they are physically in the UK; they may have come to the UK legally on a valid visa or they may have come clandestinely.
They can make an application on the basis that they would be persecuted in their home country if they had to return there, and that the level of persecution would be at a level of severity which would engage asylum law principles.
If leave is granted under either human rights principles of asylum principles this can provide a route to indefinite leave to remain.
In some circumstances, an applicant might make an application under, for example, the UK immigration rules but they might additionally make a claim under ECHR Article 8 on the basis of their family or private life.