Ownership Of A Business May Be Regarded As An Aspect Of Private Life For The Purpose Of Article 8

13 Mar 2018, 15 mins ago

In the case of Onwuje v Secretary of State for the Home Department [2018] EWCA Civ 331 the Court of Appeal looked at Article 8 of the European Convention on Human Rights (“ECHR”) in the context of a Tier 1 (Entrepreneur) Migrant. Although the appeal was dismissed, the court confirmed that running a business may amount to private life for the purposes of Article 8 of the ECHR.

Mr Onwuje first entered the UK in 2008 as a student and was later joined by his wife in 2010. The couple lived together in the UK with their three children. In 2013 an application for a further extension of leave was refused. Mr Onwuje subsequently submitted an application for leave to remain as a Tier 1 (Entrepreneur) Migrant on the basis that he had established a successful employment agency in the UK.

This application was refused because “specified documents” were not provided. Mr Onwuje appealed this decision, which was allowed, on the basis of his right under Article 8 of the ECHR. The Secretary of State appealed this decision which was re-made by the Upper Tribunal and resulted in the original appeal being dismissed. In this appeal against the Upper Tribunal’s decision the court considered both the “conventional” private and family life grounds and the involvement of Mr Onwuye in his business.

On family life the court concluded that the requirements of paragraph 276ADE of the Immigration Rules (“Rules”) were not met and that there were no compelling reasons that would justify leave outside the rules.

In relation to the business, the Lord Justice accepted that “an entrepreneur’s ownership of, and involvement in, his or her business may also be regarded as an aspect of their private life for the purpose of Article 8”, as stated in Niemietz v Germany (1993) 16 EHRR 97. The Court of Appeal also accepted that there are cases where the work a person does can be described as an important part of their “physical and social identity”.

Despite Article 8 being engaged, the court concluded that Mr Onwuje’s removal would be proportionate. The court found that Mr Onwuje had failed to meet one of the fundamental requirements, that he had set up his business during a time where his immigration status had been precarious as he only had leave under section 3C of the Immigration Act 1971 and he did not meet the threshold of compelling circumstances to be granted leave outside the Rules.

In dealing with Article 8 in a business context, the extent to which the requirements of the Rules are not met should always be considered, and clear and compelling explanations for any failure to comply with the Rules should be provided. It is however worth using the argument if the non-compliance of the Rules is minor and the reasons for the non-compliance are compelling enough.


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©Gherson 2018