Seeking Refuge? - Rights of Women

• Article 8 Right to respect for private and
family life: this article says that everyone has
the right to respect for his or her private and
family life, home and correspondence (sending
or receiving letters). The article states that
public authorities (for example, the UK Border
Agency) can only interfere with these rights if
they are allowed by law, and only where it is
necessary for certain good reasons, like public
safety or to maintain immigration control (the
control of people who enter and remain in the
UK).
If you are successful in your claim under the
ECHR, you may be given either
Humanitarian Protection or
Discretionary Leave.
Who is entitled to Humanitarian
Protection?
You will be granted Humanitarian Protection if
you do not qualify under the Refugee Convention,
but you have shown that there are substantial
reasons for believing that:
• if you were returned to your home country, you
would face a real risk of suffering serious
harm; and
• your country is either unwilling or unable to
protect you from this harm.
Serious harm includes:
• The death penalty or execution (for example,
execution by the State because you have
committed a serious crime).
• Unlawful killing (for example, murder by a
member of your family).
• Torture, inhuman or degrading punishment.
(Rape is considered to be a form of torture.
Inhuman and degrading punishment is
punishment that is harmful or humiliating, such
as an assault. If the assault or beating is
particularly severe it may be considered to be
torture).
• A serious and individual threat to you because
of indiscriminate violence in a war or conflict
(for example, where you are particularly at risk
of being killed during a war).
The concepts of internal flight and whether the
State is able to offer sufficient protection that
apply when an application is made for Refugee
Leave (see above) also apply to applications for
Humanitarian Protection.
Who is entitled to Discretionary
Leave?
You will qualify for Discretionary Leave if you do
not qualify for Refugee Leave or Humanitarian
Protection, but you can show that:
• returning you would be a breach of your right
to private and family life (Article 8 ECHR); or
• returning you would be a breach of your right
to be free from inhuman and degrading
treatment (the second part of Article 3 ECHR).
Whilst some of the rights in the ECHR are
absolute (cannot be infringed in any
circumstances), others can be interfered with or
limited in certain circumstances. The right to
private and family life is one of the rights that can
be interfered with by public authorities, such as
the UK Border Agency. However, in order for this
interference to be lawful, it has to be
proportionate and for a legitimate reason.
Maintaining immigration control is considered to
be a legitimate reason for interfering with your
private and family life. Immigration control is the
control of who is allowed to enter and remain in
the UK from other countries. However, any
interference has to be proportionate; this means
that it has to be no more than is needed.
Some rights in the ECHR are absolute; this
means that they can never be limited. The
right to be free from torture is an absolute
right. This means that there are no
circumstances when torture is allowed. Other
rights can be interfered with in a way that is
proportionate for a particular legitimate
reason. A right is interfered with if it is
limited or restricted in some way. Interference
is proportionate if it is no more than is
needed. A legitimate reason is one that is
given in the ECHR, such as the maintenance of
immigration control.
What is private and family life?
Article 8 protects your right to a private life and
your right to a life with your family.
Your private life includes things like your work or
studies and your privacy. You will have established
private life when you have been settled for a
significant amount of time in a country.
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