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Could Operating A Business Qualify for Private Life Under Article 8 ECHR?
Friday 16th March 2018
In the recent case of Onwuje v Secretary of State for the Home Department [2018] EWCA Civ 331, the Court of Appeal held that running a business could amount to 'private life' under Article 8 of the European Convention on Human Rights ('ECHR').
Despite Mr Onwuje's appeal failing, the Court of Appeals acknowledged that running a business can engage Article 8, which should be looked at and considered in each individual case. Article 8 reads:
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of this."
The Appellant, Mr Onwuje, was a Nigerian national who had come to the UK as a student. His wife joined him as a dependent and they went on to have three children.
After his leave to remain expired, he applied for a Tier 1 Entrepreneur Visa, based on an employment agency he had started providing services to the health care sector. Unfortunately, his application was rejected due to mistakes in the documents required to show that he had access to the requiste investment funds. Mr Onwuje then lodged an appeal, despite already admitting that he could not satisfy the Immigration Rules.
The Tribunal held that Mr Onwuje was entitled to remain in the United Kingdom under Article 8, on the basis that if he had to leave his business would close, leaving not only him and his family, but also clients at a detriment. The Secretary of State successfully appealed this decision and the case went to the Court of Appeal.
The Court of Appeal stated that regarding family life under Article 8, as the entire family would be removed from the UK together, no interference could be established.
As to whether Article 8 was engaged due to private life, Lord Justice Underhill, who delivered the judgment of the court, stated:
"As regards private life, the position has arguably been unnecessarily complicated by the emphasis placed by the FTT on the Appellant's involvement with his business. Mr Mustafa made it clear that the Appellant had always relied also on conventional private life grounds. In his witness statement in the FTT he gave evidence, albeit in fairly general terms, about the friendships and social life that he and his wife and children had developed in their local community and how fully integrated they were, particularly through church and school. It is fair to say that those general statements were not supported by very much in the way of independent evidence: the letters from the Appellant's church and his daughter's school are perfunctory. Nevertheless, the general proposition is entirely plausible. I would therefore be prepared to hold that the FTT was entitled to find that the right to respect for the private lives of the Appellant and his wife and children was engaged by their liability to removal, even without any reference to his business".
Lord Justice Underhill then turned to the reasoning detailed in Niemietz v Germany (1993) 16 EHRR 97, where the European Court of Human Rights stated:
"The Court does not consider it possible or necessary to attempt an exhaustive definition of the notion of 'private life'. However, it would be too restrictive to limit the notion to an 'inner circle' in which the individual may live his own personal life as he chooses and to exclude therefrom entirely the outside world not encompassed within that circle. Respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings. There appears, furthermore, to be no reason of principle why this understanding of the notion of 'private life' should be taken to exclude activities of a professional or business nature since it is, after all, in the course of their working lives that the majority of people have a significant, if not the greatest, opportunity of developing relationships with the outside world."
Acknowledging the above comment, Lord Justice Underhill stated he had "no difficulty" agreeing that the owning and operating of a business could constitute private life for the purposes of Article 8. However, Lord Justice Underhill went on to say that there was no compelling evidence that the Mr Onwuje's business was essential to his identity. Instead, the witness statements focused more on what benefits the business could bring to the local community and its clients.
No such compelling reasons could be found by the court in this case. Mr Onwuje built up his business at a time his Immigration status, although not unlawful, was precarious and not secure. Thus, the closure of the business, although upsetting and resulting in the loss of two jobs, it would not cause serious damage or disruption to the wider community.
Despite not winning the appeal, Mr Onwuje's case and the decision could have a wide reaching impact as it provides a possible Human Rights claim for Tier 1 (Entrepreneur) Migrants and other migrants who are applying for entry into the UK via a business visa.
LS Legal Solicitors are well-versed in providing immigration advice to individuals and businesses alike, achieving an impressive 100% success rate for all Entrepreneur visa applications.
If you are seeking immigration or any other legal advice, please contact our firm on 020 81 44 55 88, via email on info@LSLegaLUK.com or use the contact box to discuss your matter or make an appointment.