In Onwuje v Secretary of State for the Home Department, the Tribunals and the Court of Appeal were asked to comment on the issue of whether professional and business interests can establish a European Convention of Human Rights (“ECHR”) Article 8 Private Life claim.
Background in Onwuje v Secretary of State for the Home Department
The issue of Article 8 ECHR Private Life was explored in Onwuje v Secretary of State for the Home Department. The Appellant was a Nigeria national who entered the United Kingdom on a Student Visa in August 2008. The Appellant was granted further leave on two occasions until September 2013. The Appellant’s wife and children were also in the UK as his dependant’s. They were also nationals of Nigeria. Prior to the expiry of his leave in September 2013 he had applied for further leave to remain but his application was refused. The Appellant had appealed the decision but later withdrew his appeal. On 6 March the Appellant submitted an application for leave to remain as a Tier 1 Entrepreneur. The business to which the application related was an employment agency in the health and care sector called Casgo Connections Limited. Unfortunately, his application was refused on the grounds that there were defects in the specified documents. The Appellant appealed the decision at the First Tier Tribunal.
First Tier Tribunal Judgment in Onwuje v Secretary of State for the Home Department
The Appellant appealed the decision to refuse his application on the grounds of his Article 8 ECHR Private Life in the UK. Representations were made that he should be granted further leave to remain outside the Immigration Rules on the basis of his interests in the UK namely his business interests. The Appellant had invested a significant cash sum into his business. Further, it should be noted that his business was providing a valuable service to the National Health Service (“NHS”) and there were no issues in relation to the business relying on the public purse. The essential picture that emerges is that Casgo was doing good business and was profitable; also that the Appellant had invested £40,000 into the business. The First Tier Tribunal considered the 5 points put forward in R (Razgar) v Secretary of State for the Home Department.
In a decision promulgated on 3 February 2015, First Tier Tribunal Judge allowed the appeal. In his judgment Judge James sympathised with the Appellant stating:
“In times of austerity and economic depression it is clear this company under the ownership and directorship of the Appellant, is providing an important service to The NHS and local government delegated services and facilities, and much-needed employment to the local community.” Further stating:
“I find that Article 8, the right to respect for family life, is engaged and in this case. Having considered the provisions of Article 8 I find that the refusal of leave to remain engages and interferes with private and family life, and although it has legitimate aims in regards to immigration control, I do not find that the Respondent’s decision was reasonable and proportionate in all the circumstances of this particular case”
The Secretary of State appealed against First Tier Tribunal’s judgement.
Upper Tribunal in Onwuje v Secretary of State for the Home Department
The Upper Tribunal was asked to comment on the First Tier Tribunal Judgement in Onwuje v Secretary of State for the Home Department. The Upper Tribunal found three errors of law in the decision of the First Tier Tribunal Tribunal. The central issue for the Upper Tribunal was the fact that there had been an error from the First Tier Tribunal Judge in “concluding that Article 8 (1) was engaged through the Claimant’s running of a business and its economic benefits to the UK.” The Upper Tribunal also concluded that there was sufficient evidence available to the First Tier Tribunal to dismiss the appeal and it would have been proportionate. In particular, the Upper Tribunal Judge stated:
“I find that any interference would be proportionate to the legitimate end: namely the operation of a coherent and fair system of immigration control. The success or failure of a business venture is not a matter by which the respect for private life can be judged.”
The Upper Tribunal delivered a new judgement overruling the First Tier Tribunal’s decision in allowing the appeal. The Claimant’s appealed further.
Court of Appeal in Onwuje v Secretary of State for the Home Department
The Appellant appealed the Upper Tribunal’s decision at the Court of Appeal. Permission to appeal was given on the basis that the Upper Tribunal was wrong to hold that the fact that the Appellant had established a successful business, which would probably fold of if he had to return to Nigeria, was irrelevant. The Court of Appeal would consider the issues as a whole. The Court held that Family Life had not been engaged because If the Appellant was removed he would be removed with his family so there is no interference. With regard to the Appellant’s Private Life the Court of Appeal accepted that in some circumstances Private Life claims can be in respect of business interests in the UK. The Court of Appeal also made reference to Niemiet v Germany (1993) 16 EHRR 97. In Niemietz the European Court of Human Rights accepted professional or business activities can form a Private Life claim.
Despite the Court of Appeal accepted that professional and business interests can be used to establish ECHR Article 8 Private Life the court dismissed the Appellant’s appeal. It should be noted that the decision to refuse the Appellant’s appeal was due to the limited evidence available and it may have been different if a stronger case was presented.
The full judgement can be found here: Onwuje & Anor v The Secretary of State for the Home Department  EWCA Civ 331 LEXVISA.
What does this mean for Private Life Claims post Onwuje v Secretary of State for the Home Department?
Unfortunately, the Court of Appeal dismissed the Appellant’s appeal. Notwithstanding, the Court of Appeal did provide useful insight on whether professional and business interest can constitute to an ECHR Private Claim. Whilst it is clear from the Court’s judgement in Onwuje v Secretary of State for the Home Department a strict approach will be taken when assessing ECHR Article 8 Private Life claims. There are encouraging signs for business people who can demonstrate strong ties to their business interests in the UK. If you would like to explore the possibility of submitting an ECHR Article 8 Private Life claim on the grounds of Private Life you should contact us so we can offer you a detailed assessment of your prospects of success.
Using Legal Representation to submit an ECHR Article 8 Private Life claim
Legal representatives, such as our specialist immigration and visa law firm, are qualified to advise you on immigration law and your immigration matter. You can instruct one of our immigration and visa legal representatives to successfully assist you with an appeal. Our solicitors and Barristers will help you comply with the tribunal requirements/directions.
Caseworkers at the Home Office are trained to reject applications which are improperly prepared, for example by failing to provide the correct supporting evidence. If your application has been erroneously refused, our solicitors and barristers will ensure your appeal has the best prospects of success.
The UK Immigration Rules are complex and a legal representative can help ensure that your appeal as an meets the Rules.
Successfully submit an ECHR Article 8 Private Life claim
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