Owning and running a business in the UK may constitute private life for the purpose of Article 8 – Court of Appeal

In the case of Onwuje v Secretary of State for the Home Department [2019] EWCA Civ 331, the Court of Appeal has this month looked at private life under Article 8 of the European Convention on Human Rights (“ECHR”) in relation to those who are in the UK as a Tier 1 (Entrepreneur) Migrant. The court looked at whether someone running a business in the UK may rely on this as evidence of established private life under Article 8 of the ECHR. The appeal was dismissed but the court’s comments on the issue of private life will be useful for anyone who is in similar circumstances and seeking to rely on Article 8.

The case related to Mr Onwuje, a Nigerian national. He came to the UK in 2008 and remained as a student until 2013. His wife joined him in September 2010 and their three children were all born in the UK. He applied to extend his leave but this was refused. Mr Onjuwe then applied to remain in the UK as a Tier 1 (Entrepreneur) but this was refused. He appealed the decision and accepted that he could not meet rules due to issues with his documents. He sought to rely on Article 8 “outside of the rules”. His appeal was allowed by the First-tier Tribunal based in large part on the fact that Mr Onwuje’s removal would mean that his interest in his company would be lost and that it would have to close its business. The Home Office appealed against the Tribunal’s decision. The Upper Tribunal found an error of law and remade the First-tier Tribunal decision dismissing the original appeal. Mr Onwuje then appealed to the Court of Appeal.

The court considered that “in some circumstances 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” and stated that “There are certainly cases where the work that a person does can properly be described as integral to their “physical and social identity”.

Whilst the court found that Article 8 had been engaged it was not considered Mr Onwuje had set up his business whilst his immigration status was precarious. The court found therefore that he did not meet the threshold of compelling circumstances and removal would not be a breach of his Article 8 rights.

The court’s concluding remarks are important to consider for any individual who may seek to rely on Article 8 in the context of owning and running a business: “If the result is that the Appellant and his family have to return to Nigeria, and his investment, in terms of both money and effort, in Casgo is indeed wasted, that is sad. But it was his responsibility before he started to develop a business in the UK to ensure that he acquired the proper immigration status; and he did not do so.”

Article posted by Aisha Ahmed

Aisha Ahmed
Aisha AhmedSolicitor
Aisha is qualified under the Law Society Immigration and Asylum Accreditation Scheme as a Senior Caseworker.
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