Why our Human Rights Act Matters...to Migrants Organise

Brian Dikoff is a Legal Organiser at Migrants Organise, which provides a platform for refugees and migrants to organise for power, dignity and justice. He coordinates a specialist project focusing on the issue of mental health and mental capacity in the immigration system, the Migrants Mental Capacity Advocacy Project.

Please note, this is a guest blog and views expressed in this blog do not necessarily reflect the views of BIHR.

This is the story of Nisha, a young woman whose right to family life was protected by our Human Rights Act when she and her young daughter were at risk of being removed from the UK. Nisha’s story, while fictional, is inspired by real cases and does reflect accurately the changes in the immigration rules, and how the European Convention of Human Rights and the Human Rights Act often provide a lifeline to migrants in the UK.

Nisha, a wide-eyed graduate student came to the UK ten years ago to do a master’s in pharmacology. She graduated top of her class in a university in India and dreamt of doing research in drug treatment for Alzheimer’s. She worked hard over the next few years and scraped together every penny she owned to be able to study in London. With yet another first-class degree and an impressive CV, she was confident she would be able to find a job. Sadly, only refusals arrived, and the ones who invited her for interviews apologised for not realising that she needed a work visa sponsorship, which they could not provide. Despondent after receiving a last round of refusals, she went to a bar with her friends. There, she met a guy and decided to spend the night with him; if she would have to go back home, she might as well enjoy her time.

Her heart felt like it was forcefully ripped out of her chest when the pregnancy stick turned positive. Going back home as an unwed, unemployed, single mother felt so shameful, it was hard for her to breathe just thinking about it. She figured her mum would come around eventually, but her dad? She wasn’t sure. She could already see his moustache twitching in anger. And what would happen to the baby? What prospect would a child have growing up in her small town, without a father and such a shameful history? She promised herself that she would give her baby all of the advantages she could.

She went to an immigration solicitor who advised her that she really did not have any options. Her student visa actually expired last week and she was now an illegal migrant. “You are therefore not allowed to rent and it is a criminal offence for you to work. If the Home Office knows you are over-staying, you might be detained indefinitely pending removal. At the moment, I can’t see any applications you can make to stay in the UK. It’s not like in the past; nowadays, the Home Office is very strict. Your family and friends might disapprove of your situation, but your life is not going to be threatened, and you will still be able to survive there in one way or another.”

That evening, she sat at a local Indian restaurant that was fast emptying. Tears rolled down her cheeks as she tried to figure out what exactly had happened to her life. A figure appeared out of the corner of her eyes and put down a steaming plate of samosa in front her.

“Are you okay, dear?”

She burst out crying uncontrollably.

Five years passed and Nisha had long forgotten her dream of doing Alzheimer’s research. That was a different life. Now, she and her daughter lived above the Indian restaurant, which she helped run. Her savings had run out a long time ago, and the little she earned from working at the restaurant was spent on her daughter: nappies, milk, toys, baby food... Her own mother and father disowned her after learning what happened and never even met their granddaughter. 

She never heard from the Home Office, fortunately, but every night she would lie awake, her solicitor’s advice ringing in her head: “it is a criminal offence for you to work. If the Home Office knows you are overstaying, you might be detained indefinitely” Some days she didn’t even dare to go out, fearing that at any point someone might arrest her. 

Two more years passed, and her daughter was now in primary school.

One day, she met another single mother at the school gates. They became friends and she told her about her situation.

“So many years have passed, maybe there’s an option for you now. I know someone in a similar situation as you who went to a place near Hackney, and they helped her. Try going there, it’s free”.

She was doubtful but thought she should give it a try. She arrived there the next day just before 9am but there was already a long queue. She stood for three hours before she eventually met with an adviser.

To her surprise, she was told that she had an option now.

“I see your daughter is seven years old now, which means you can make an application for a leave to remain on the basis of your family life in the UK. Private and family life is protected by Article 8 of the European Convention of Human Rights by virtue of the Human Rights Act 1998. Put simply, the idea is that you and your daughter have built a family life here in the UK and it would be a breach of that if you were to be removed from the country.

We can help you with this for free and, if successful, you will be given 2.5 years of leave which you will need to extend four times. After 10 years with leave to remain, you will can apply for settlement. The cost for the application for you and your daughter will be £2066 and an additional £3120 for the NHS surcharge, making a total of £5186. We can get a fee waiver for this time around as you haven’t been able to work or claim benefits but, in the future, you will be expected to save up to pay every 30 months and the fee might increase in the future. If you miss an application, you will become an overstayer again and the 10 years clock restarts. You won’t be given access to public benefits unless we can show that you and your daughter will be destitute without it. Do you think you’ll be able to work?”

She had really stopped listening the moment she heard that something was possible. The rest did not really matter as long as there was a way out. For the first time in a very long time, she felt like she could breathe.

“Sorry, so do you think you’ll be able to work or do you think you’ll need benefits?”

 “Yes, yes, I can. I’m a pharmacist”