Human rights law stems from the European Convention on Human Rights. Countries such as the UK, which have signed the Convention, are generally bound by it. The Convention aims to protect people’s rights in a number of different areas: for example the right to life, the right not to be mistreated, the right to marry and the right to family life.
A person may make an application under human rights principles if, for example, they are in the UK and the UK Border Agency intends to remove them back to their country. They could in such a situation, if appropriate, make a human rights application on the basis of their extensive family life in the UK. And there are situations where the person could claim under human rights principles that they would suffer exceptional hardship if they had to return to their country. If their human rights application were successful they would be allowed to stay in the UK.
A person may also incorporate human rights principles in a different kind of application. For example, if they are in the UK and they apply for an extension of their working visa under the Immigration Rules they could also incorporate human rights in their application if they have an extensive family life in the UK. In a different kind of situation, if a person makes a visa application from abroad to join members of their family in the UK under the Immigration Rules they could also incorporate their right to a family life under human rights principles in the application.
The Immigration Rules and human rights law are two separate things, and with such an application which has human rights principles incorporated in it the application could conceivably be unsuccessful under the Immigration Rules but succeed under human rights principles, and the applicant would be granted leave in the UK.
And in a situation where a person has made an application under the Immigration Rules but it has been refused and it goes to appeal before the Immigration Tribunal, then human rights arguments can be introduced at the appeal stage. Their appeal could conceivably fail under the Immigration Rules but succeed under human rights principles.
The principles of asylum law stem from the United Nations Refugee Convention. The UK is one of the countries which has signed the Convention and it is bound by it.
If a person has come from their country to the UK – either legally or illegally – they might be able to make a claim for asylum if they can realistically claim that they have been persecuted, or that they would be persecuted, in their country, and that it would therefore not be safe for them to return to their country.
Typically, asylum-seekers may claim asylum on the basis of persecution because of their political opinions, their ethnicity, their religion or their sexuality, and they may claim that they would be mistreated, falsely imprisoned or killed by the authorities in their country if they returned there.
If the UK Border Agency accepts an asylum-seeker’s claim then that person will be granted refugee status and they will be allowed to remain in the UK, in most cases on a permanent basis.
Human rights principles are in some cases closely similar to asylum principles in that they aim to protect a person from mistreatment. The Human Rights Convention covers very similar matters to those covered by asylum principles: particularly the right to life, the right not to suffer torture or inhuman or degrading treatment, and the right to a fair trial.
In most cases an asylum-seeker will also make a claim under human rights law. It is possible in some cases that an asylum-seeker’s claim might fail under asylum law but could succeed under human rights law because the provisions in the Human Rights Convention are written in a broader way.
If an asylum-seeker succeeds in either their asylum claim or their human rights claim they will be given permission to remain in the UK, although the form of the grant of leave will be different. But, in either case, the person will in most cases be able to stay in the UK indefinitely.
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