Overstayer Or Failed Asylum Seeker in the UK? Why You Shouldn’t Pack Your Bags Just Yet

luggage-airport-300x200Failed asylum seekers and those without leave to remain in the UK, may feel that they have no option but to  leave the  UK,  where there seems no way of regularising their stay.

 

“Home Is Best”, they say, however, prior to taking such steps, it is worth while pausing to review  circumstances, as  adult claimants or children without leave in the UK have several options open to them having regard to  several  provisions of UK law,   which they can appropriately avail themselves  in order to seek to  regularise their stay in the UK.

 

(1)PARAGRAPH 353 OF THE IMMIGRATION RULES- FURTHER SUBMISSIONS AND FRESH CLAIMS

 

A failed asylum seeker may, following the exhaustion of their rights of appeal,  seek to rely upon new evidence in support of their claim such as an arrest warrant, relevant background evidence going to the points in issue, newly promulgated caselaw favourable  to their claim or protest activities  undertaken in the UK  against  the government of their nationality, which might place them at risk on return.

 

A failed asylum seeker can submit submissions  to the Home Office made on protection grounds following the refusal of asylum or humanitarian protection. As is now well  known now,  subject to exceptional circumstances,  such claims  must be made in person at the Further Submissions Unit in Liverpool.

 

Paragraph 353 of the Immigration Rules applies to further submissions on protection and human rights grounds. It sets out the circumstances in which further submissions will be considered and, if rejected, how to determine whether they amount to a fresh claim.

 

Paragraph 353 states that submissions will amount to a fresh claim if they are significantly different from material that has already been considered. Submissions will only be significantly different if the content:

 

  • has not already been considered; and

  • taken together with previously considered material, creates a realistic prospect of success before the Tribunal on protection or human rights grounds, including claims under Article 8 ECHR (which will be considered under the Family or Private Life Rules, where appropriate).

Paragraph 353 does not apply in any of the following circumstances:

 

  • a claimant has not previously lodged a protection or human rights claim

  • a claim is pending and an initial decision has not been made

  • there is an appeal pending against a previous claim

 

Home Office decision makers must consider whether the new evidence, taken together with the old material (including any appeal determination, previous statements, or interviews), and any other change of circumstances, for example more recent country information or caselaw where applicable, should result in a grant of leave. Depending on the facts of the case, it may be appropriate to interview the claimant again.

 

Further submissions on ECHR Article 8 grounds in non-deportation cases, including those made by way of a valid application, must be considered by the Home Office by reference to the Asylum and human rights policy instruction Further submissions Version 9.0 Publication date: 19 February 2016 and relevant family guidance at: IDI Chapter 8: Appendix FM: 1.0b Family and private life – 10 year route’.

 

Further submissions on ECHR Article 8 grounds in criminal deportation cases must be considered in accordance with Part 13 of the Immigration Rules. Further submissions in deportation cases, for reasons other than criminal convictions, must be considered outside the Immigration Rules. Further submissions in all cases must be considered in accordance with the  Asylum and human rights policy instruction Further submissions Instruction.

 

If the material, in whatever form it takes, has previously been considered by the Home Office or by an Immigration Judge at appeal, the first test required in paragraph 353 is not met and there is no fresh claim.

 

If the material has not previously been considered, Home Office decision makers  must assess whether the new material, taken together with material previously considered, creates a realistic prospect of success. The question is whether the issues raised are at least arguable and could lead an Immigration Judge to take a different view.

 

Where it is decided that a fresh claim has not been made, there is no right of appeal against refusal of further submissions, including refusal of repeat applications. However, where further submissions are refused but it is considered that there is a fresh claim on asylum or human rights grounds, a right of appeal is generated under section 82 of the Nationality, Immigration and Asylum Act 2002 as amended by the Immigration Act 2014.

 

If a claimant challenges a decision that further submissions do not amount to a fresh claim by lodging a judicial review, the Upper Tribunal will ask whether the decision was reasonable. The decision will be reasonable if the  Home Office decision maker  has carefully and objectively considered further material taken together with previously considered material, against the correct legal test and alongside any relevant circumstances (such as country situation), and concluded that the new material does not create a realistic prospect of success at appeal.

 

(2)PARAGRAPH 353B  OF THE IMMIGRATION  RULES

 

Paragraph 353B applies where further submissions have been made and the decision maker has established whether or not they amount to a fresh claim under paragraph 353 of the Rules, or in cases with no outstanding further submissions whose appeal rights have been exhausted and which are subject to a review.

 

Paragraph 353B of the Immigration Rules sets out when exceptional circumstances should be considered.

 

Paragraph 353B does not apply where the person is liable to deportation.

 

Where further submissions on asylum or human rights grounds (in non-deportation cases) are refused, paragraph 353B requires Home Office caseworkers to consider whether exceptional circumstances prevent removal.  The  relevant Home Office Guidance in considering paragraph 353B is Chapter 53 of the Enforcement Instructions and guidance (EIG).

 

Chapter 53 begins by stating that, “It is the policy of the Home Office to remove illegal migrants from the UK unless it would be a breach of the Refugee Convention or ECHR, or there are exceptional circumstances for not doing so in an individual case”.

 

Subject to certain exceptions, such as when a claimant is in detention, a migrant without leave, who claims that exceptional circumstances apply in their case such that they should not be removed, would need to  put forward their claim by way of an application.

 

An application for leave to remain on the basis of exceptional circumstances can be made, using the charged application form FLR(DL)  as regards applications  for further leave to remain or settlement in the UK by a person granted Discretionary Leave following the refusal of asylum. Form FLR(HRO) is relevant,  for example,  for applications for  Discretionary Leave where a person has  previously been granted a period of discretionary leave  but has not previously been refused asylum or granted less than four years Exceptional Leave.

 

Exceptional Circumstances – Relevant Factors:

 

Discretion not to remove on the basis of exceptional circumstances must not be exercised on the basis of one factor alone and takes into account the following:-

 

  • Character, conduct and associations including any previous criminal record and the nature of any offence of which the applicant has been convicted.

  • Compliance with any conditions attached to any previous grant of leave to enter or remain and compliance with any conditions of temporary admission or immigration bail where applicable.

  • Length of time in the UK accrued for reasons beyond the migrant’s control after their human rights or asylum claim has been submitted or refused. In this regards, Home Office decision makers must consider whether there has been significant delay by the Home Office, not attributable to the migrant, in deciding a valid application for leave to remain on asylum or human rights grounds or whether there are reasons beyond the individual’s control why they could not leave the UK voluntarily after their application was refused. For example: “Family’ cases where delay by the Home Office, or factors beyond the control of the family which have prevented departure, have contributed to a significant period of residence (for the purposes of this guidance, ‘family’ cases means a parent or parents as defined in the Immigration Rules and children who are emotionally and financially dependent on the parent, and under the age of 18 at the date of the decision). Following an individual assessment of the prospect of enforcing removal, and where the factors outlined in ’Character’ and ’Compliance’ do not prevent a case from benefiting from the exceptional circumstances guidance, family cases may be considered exceptionally on grounds of delay where the dependent child has lived in the UK for more than 3 years or more whilst under the age of 18.   Any other case where the length of delay by the Home Office in deciding the application, or where there were factors preventing departure, may be considered exceptionally on grounds of delay where the person has lived in the UK for more than six years”.

  • Any representations received on the persons behalf.

 

Type of Grant of Leave to Remain in Exceptional Circumstances:

 

If having considered the factors set out in the Guidance in Chapter  53,  removal is no longer considered appropriate then Discretionary Leave to remain should be granted, having  regard to the ‘Discretionary Leave’ policy.

 

(3)DERIVATIVE RIGHTS OF RESIDENCE APPLICATIONS

 

A child of an EA national and their parent( e.g, a former  spouse/partner of an EEA national) may be residing  together in the UK without any leave to  remain  and without  that child having been enabled by the absent  EEA parent to take advantage of  EEA nationality.

 

Alternatively , a parent of a  British citizen child may be  residing  in the UK with that child but with the  parent residing here undocumented.  

 

A parent may be responsible for their EEA national child who is residing in the UK, yet themselves have no leave to remain in the UK.

 

A person who does not qualify for a right of residence under Directive 2004/38/EC may  however qualify for another right of residence under European Union law. These are known as ‘derivative rights’ as they come from (are ‘derived’ from) other instruments of EU law, and not from the Directive.

 

The relevant cases for consideration are Zambrano, Chen and  Ibrahim and Teixeira.

 

Regulation 20 of the  2016 EEA Regulations  provides for the issue of a derivative residence card. Regulation  16 sets out the derivative right to reside.

 

The relevant application form for a derivative residence card is DRF1 Form and the  application fee is £65.00 per applicant.

 

Where a person has applied for a derivative residence card, they will be issued a certificate of application (COA). The COA is a letter which confirms a person:

 

  • has submitted a valid application for a document issued under the regulations, and

  • is entitled to take employment or self-employment whilst that application remains outstanding.

A certificate of application does not confirm a person has a derivative right of residence.

 

A derivative residence card shows that the holder has a derivative right at the time the card was issued, but only confers a right to work and reside in the UK for as long as the holder continues to enjoy the underlying right to reside.

 

Derivative residence cards should generally be issued for five years at a time. In certain circumstances, the Home Office may issue for an alternative period depending on the individual facts of the case.

 

As derivative rights of residence do not stem from Directive 2004/38/EC the same levels of rights and protections do not apply. This means that a person with a derivative right of residence cannot get permanent residence in the UK under the regulations.

 

Zambrano Applications:

 

A person may qualify for a derivative right of residence as  the primary carer of a British citizen child or dependent adult, where requiring the primary carer to leave the UK would force that British citizen to leave the EEA.

 

The case of Ruiz Zambrano (European citizenship) [2011] EUECJ C-34/09,  established that European Union (EU) member states cannot refuse a person the right to reside and work in a host member state, where:

 

  • that person is the primary carer of an EU citizen who is residing in their member state of nationality, and

  • refusing a right of residence to that primary carer would deprive the EU citizen of the substance of their European citizenship rights by forcing them to leave the European Economic Area (EEA).

 

This means that the primary carer of a British citizen who is residing in the UK, has a right to reside under EU law if their removal from the UK would require the British citizen to leave the EEA.

 

Regulation 16 of the 20016 EEA Regulations provides:

 

“Derivative right to reside

This section has no associated Explanatory Memorandum

16.(1) A person has a derivative right to reside during any period in which the person—

(a)is not an exempt person; and

(b)satisfies each of the criteria in one or more of paragraphs (2) to (6).

…………

(5)The criteria in this paragraph are that—

(a)the person is the primary carer of a British citizen (“BC”);

(b)BC is residing in the United Kingdom; and

(c)BC would be unable to reside in the United Kingdom or in another EEA State if the person left the United Kingdom for an indefinite period.

(6) The criteria in this paragraph are that—

(a)the person is under the age of 18;

(b)the person does not have leave to enter, or remain in, the United Kingdom under the 1971 Act;

(c)the person’s primary carer is entitled to a derivative right to reside in the United Kingdom under paragraph (2), (4) or (5); and

(d)the primary carer would be prevented from residing in the United Kingdom if the person left the United Kingdom for an indefinite period”.

 

The regulations do not impose an age limit on the relevant British citizen who is dependent upon their primary carer.

 

In circumstances where the relevant British citizen is over the age of 18 years, the Home Office will assess whether the British citizen needs such care. Any such care is likely to only be required where the British citizen has a severe physical and/or mental impairment that means they are unable to care for themselves.

 

Primary responsibility will generally be established in cases involving adults where the person asserting a derivative right of residence can show they are responsible for the majority of that adult’s care. The level of evidence required to demonstrate primary responsibility and dependency will be significantly higher in cases involving adults, than in those involving children. In such cases, only evidence that shows the relevant person’s dependence on another person is due to a severe physical or mental disability is likely to bring a person within scope of the regulations.

 

Part of the consideration process is to assess whether the primary carer’s presence in the UK is conducive to the public good. As derivative rights of residence do not stem from Directive 2004/38/EC, such persons cannot benefit from the protection of public policy, public security or public health. Instead, applications for a derivative residence card are assessed against the conducive threshold.

 

Chen Applications

 

A person may qualify for a derivative right of residence as the primary carer of an EEA national child who is exercising free movement rights in the UK as a self-sufficient person, where requiring the primary carer to leave the UK would prevent the EEA national child exercising those free movement rights.

 

In line with Directive 2004/38/EC, an EEA national self-sufficient child has a right of residence in a member state where that child:

 

  • is an EEA national

  • holds sufficient resources to prevent them becoming a burden on the social assistance system of the host member state, and

  • holds comprehensive sickness insurance.

 

If a child meets these requirements, they can apply for a registration certificate as confirmation of this right.

 

An EEA national child who is residing in the UK as a self-sufficient person is residing in line with the Directive and so can get permanent residence after five years continuous residence.

 

A person who has a derivative right of residence on the basis that they are the primary carer of such a child, cannot themselves get permanent residence however. Their right will continue for as long as their EEA national child reaches the age of 18 years.

 

In the ECJ case of Chen, and Others (Free movement of persons) [2004] EUECJ C-200/02,  the court found that a self-sufficient EEA national child is entitled to be accompanied by their primary carer who will have a right of residence in the host member state until the child’s eighteenth birthday, if refusing such a right prevents the child from continuing to reside in the UK.

 

Regulation 16 of the 2016 Regulations provides:

 

Derivative right to resideThis section has no associated Explanatory Memorandum

  1. (1) A person has a derivative right to reside during any period in which the person—

(a)is not an exempt person; and

(b)satisfies each of the criteria in one or more of paragraphs (2) to (6).

(2) The criteria in this paragraph are that—

(a)the person is the primary carer of an EEA national; and

(b)the EEA national—

(i)is under the age of 18;

(ii)resides in the United Kingdom as a self-sufficient person; and

(iii)would be unable to remain in the United Kingdom if the person left the United Kingdom for an indefinite period.

…………….

(6) The criteria in this paragraph are that—

(a)the person is under the age of 18;

(b)the person does not have leave to enter, or remain in, the United Kingdom under the 1971 Act;

(c)the person’s primary carer is entitled to a derivative right to reside in the United Kingdom under paragraph (2), (4) or (5); and

(d)the primary carer would be prevented from residing in the United Kingdom if the person left the United Kingdom for an indefinite period”.

 

A child may show that they are self-sufficient by relying upon the income of their primary carer. Any work undertaken in the UK will only be considered acceptable where this is lawful. The EEA national child must be self-sufficient before the primary carer started employment in a Chen capacity.

 

If the primary carer is not lawfully working in the UK, or does not earn enough income to demonstrate that the child and themselves are self-sufficient, the Home Office can accept other evidence which may include:

 

  • bank statements showing income from other sources, for example family or friends, or

  • savings accounts showing funds which are accessible to the primary carer and child

 

The Home Office will assess whether the primary carer’s presence in the UK is conducive to the public good. As derivative rights of residence do not stem from Directive 2004/38/EC, such people cannot benefit from the protection of the higher public policy, public security or public health threshold which applies to EEA nationals and their direct family members. Instead, applications for a derivative residence card are assessed against the conduciveness threshold.

 

Ibrahim and Teixeira applications

 

A person may qualify for a derivative right of residence:

 

  • as the child of an EEA national worker or former worker where that child is in education in the UK

  • as the primary carer of a child of an EEA national worker or former worker where that child is in education in the UK, and where requiring the primary carer to leave the UK would prevent the child from continuing their education in the UK

  • as the dependent child aged under 18 of a primary carer, where requiring that dependent child to leave the UK would force the primary carer to leave the UK with them.

 

In the cases of Ibrahim and Teixeira, the ECJ ruled that, by virtue of Article 10 of Regulation 492/2011 (formerly Article 12 of Regulation No 1612/68) the following can claim a right of residence:

 

  • children who are in education in a host member state where the European Union citizen works or has worked, and

  • the primary carer of those children.

 

Regulation 16 of the 2016 EEA Regulations  provides:

 

 

“Derivative right to reside

This section has no associated Explanatory Memorandum

16.(1) A person has a derivative right to reside during any period in which the person—

(a)is not an exempt person; and

(b)satisfies each of the criteria in one or more of paragraphs (2) to (6).

……….

(3)The criteria in this paragraph are that—

(a)any of the person’s parents (“PP”) is an EEA national who resides or has resided in the United Kingdom;

(b)both the person and PP reside or have resided in the United Kingdom at the same time, and during such a period of residence, PP has been a worker in the United Kingdom; and

(c)the person is in education in the United Kingdom.

(4)The criteria in this paragraph are that—

(a)the person is the primary carer of a person satisfying the criteria in paragraph (3) (“PPP”); and

(b)PPP would be unable to continue to be educated in the United Kingdom if the person left the United Kingdom for an indefinite period”.

………………..

(6) The criteria in this paragraph are that—

(a)the person is under the age of 18;

(b)the person does not have leave to enter, or remain in, the United Kingdom under the 1971 Act;

(c)the person’s primary carer is entitled to a derivative right to reside in the United Kingdom under paragraph (2), (4) or (5); and

(d)the primary carer would be prevented from residing in the United Kingdom if the person left the United Kingdom for an indefinite period”.

 

Where a child has reached the age of 18 years, the Home Office generally assume they are capable of meeting their own needs. In some cases, the primary carer’s right of residence may continue if the child needs the presence and care of that primary carer in order to pursue and complete their education. This is likely to occur where the child has a physical and/or mental impairment that means they are unable to care for themselves.

 

The child’s right of residence will continue as long as they remain in education.

 

For the purposes of assessing whether a child (and so also their primary carer) has a derivative right of residence on the basis of the Ibrahim and Teixeira ECJ judgments, an adopted child and a step-child are considered the same as if they were the biological child. In the case of step-children, where the EEA parent has since divorced from the child’s biological parent, the primary carer and child can still be considered for a derivative residence card as long as they can demonstrate the child was the step-child of the EEA national parent.

 

It is not necessary for the EEA national parent to have been a worker at a time when the child was in education. The child must only have been:

 

  • living in the UK at a time when the EEA national was a worker, and

  • in education at a time when the EEA national was present in the UK.

Education “excludes nursery education but does not exclude education received before the compulsory school age where that education is equivalent to the education received at or after the compulsory school age”.

 

“Worker” does not include a jobseeker or a person treated as a worker under regulation 6(2).

 

To assess whether the child was in the UK at the same time as the EEA national was working, the Home office may accept one of the following as evidence:

 

  • a letter from the child’s school

  • a letter from the child’s GP

  • the child’s passport which shows entry and/or exit stamps to the UK.

This is not a complete list and there may be other documents the home office  can accept as evidence the child was in the UK at the relevant time.

 

Evidence must be provided from the child’s current educational establishment that confirms they are in education at the date of decision. For children under the age of 18 years, this is likely to be provided by a state-funded or privately-funded school. For those over the age of 18 years old, this may be provided in the form of a letter from a further or higher education authority.

 

Evidence must also be provided to show the child was in education at the same time the EEA national parent was residing in the UK. The letter from the educational establishment must outline the date:

 

  • the child started in education at that establishment, and

  • they completed their education there, or that they are currently in education there.

The following forms of evidence are acceptable as proof that the EEA national parent was in the UK at the same time the child was in education:

 

  • bank statements showing UK transactions at the relevant time

  • utility bills dated at the relevant time

  • payslips for the period in question.

 

This is not a complete list and there may be other forms of evidence which are acceptable to the Home Office.

 

A derivative right of residence for the child will continue until they have completed their education. This means that any associated rights may extend beyond the child’s eighteenth birthday. Where they do, and the primary carer is claiming a derivative right of residence on the basis of the child’s rights, the Home Office will assess whether the child would be unable to continue in education if the primary carer was required to leave.

 

To do so the Home Office will assess whether there is another direct relative, legal guardian, or in the case of an adult, a private or local authority in the UK, who is either:

 

  • already providing care for the child of an EEA national, or

  • is able to assume care for the child of an EEA national.

 

The Home Office will also consider whether the applicant’s presence in the UK is conducive to the public good. As derivative rights of residence do not stem from Directive 2004/38/EC, such persons cannot benefit from the protection of public policy, public security or public health. Instead, applications for a derivative residence card are assessed against the conduciveness threshold.

 

(4) 10YEARS RESIDENCE FOR CHILDREN BORN IN THE UK AND REGISTRATION AS BRITISH CITIZEN

 

Where a child was born in the UK on or after 1 January 1983 and has lived in the UK for the first 10 years of their lives, the  child is entitled to register under Section 1 (4) of the British Nationality  Act as a British citizen.

 

Form T is the relevant application form for completion for registration as a British citizen by a person born in the United Kingdom on or after 1 January 1983 who has lived there up to the age of 10.

 

To be registered under this section the child must:

 

  • have been born in the United Kingdom on or after 1 January 1983;

  • be 10 years of age or over;

  • have spent no more than 90 days outside the United Kingdom in each of the first 10 years of their life; and

  • be of good character

 

In special circumstances, the Home Secretary may make an exception to the requirement that the applicant must not have been absent from the United Kingdom for more than 90 days in any of the first 10 years. If the applicant has  exceeded this number of days in any of those years, but  the Home Secretary  believes there are special circumstances in  the  case,  the applicant  should explain what those special circumstances.

 

A minor who is unable to meet some of, or all of, the requirements listed above may still have a right to be registered as a British citizen on the strength of his or her parents’ citizenship or immigration status. Alternatively, the Home Secretary may be prepared to register a minor because of his or her special circumstances.

 

(5) HUMAN RIGHTS APPLICATIONS  UNDER THE 10YEAR ROUTE TO SETTLEMENT

 

Since 9 July 2012, the Immigration Rules have contained a new framework for considering applications and claims engaging Article 8 of the European Convention on Human Rights (ECHR) (right to respect for private and family life). Appendix FM to and paragraph 276ADE(1) of the Immigration Rules provide the basis on which a person can apply for entry clearance to or leave to remain in the UK on family life grounds or leave to remain here on private life grounds.

 

Immigration Directorate Instruction Family Migration: Appendix FM Section 1.0b Family Life (as a Partner or Parent) and Private Life: 10-Year Routes, August 2015, is the guidance  that is  used by Home Office  decision makers  when considering whether to grant leave to remain on a 10-year route to settlement following a  Human Rights application or claim for leave to remain on the basis of family life as a partner or parent or on the basis of private life in accordance with  the Immigration Rules.

 

The Guidance however also states, “An applicant under the 10-year partner, parent or private life routes may be able to qualify for settlement (Indefinite Leave to Remain) after they have completed a continuous period of 120 months with leave under that route. They may, however, be able to qualify for settlement more quickly if they subsequently make a valid application for, and qualify for, the 5-year partner or 5-year parent route under Appendix FM. Their previous leave under the 10-year partner, parent or private life route would not count towards the continuous period of 60 months with leave under that 5-year route required before the applicant may be able to qualify for settlement under that route”.

 

Appendix FM must be read with Appendix FM-SE which sets out the specified evidence that must be submitted with applications. Applicants must provide all of the documents specified in Appendix FM-SE that are relevant to their application under Appendix FM. This is relevant to evidence of relationship requirements, such as provision of a marriage or civil partnership certificate.

 

Subject to certain exceptions, such as when a claimant is in detention, an applicant  would need to  put forward their claim by way of an application. An application for leave to remain should be made using charged application form  FLR (FP).

 

Subject to   meeting the fee waiver requirements,  submission  of the  current  application fee per applicant  as well the  NHS health  surcharge of £500.00 per applicant  is also  required.

 

Family life as a parent of a child in the UK

 

The 10–year parent route provides a basis on which leave to remain can be granted to a parent who has responsibility for or access to their child following the breakdown of their relationship with the child’s other parent.

 

This route is intended for single parents who meet the  relevant requirements.

 

The parent route is not for couples with a child together who are in a genuine and subsisting relationship. An applicant can only apply for the parent route if they are not eligible to apply for the partner route.

 

A 10-year parent route is available to those who are in the UK and who meet all of the suitability and eligibility requirements at every stage.

 

The requirements to be met under the 10-year parent route are set out in paragraph R-LTRPT.1.1.(a), (b) and (d) of Appendix FM. In order to qualify for a grant of leave under the 10-year parent route, an applicant must meet all of the requirements at every stage which are:

 

  • the applicant and the child must be in the UK;

  • the applicant must have made a valid application for limited or indefinite leave to remain as a parent (subject to the exceptions set out in GEN.1.9. of Appendix FM. and as outlined in Section 12.1 of this guidance); and

  • the applicant must not fall for refusal under Section S-LTR; Suitability leave to remain; and

  • the applicant meets the relationship requirements of paragraphs E-LTRPT.2.2-2.4. and the immigration status requirements in E-LTRPT.3.1. – 3.2.; and paragraph EX.1.(a) applies.

 

E-LTRPT.2.2 specifically provides that the  child of the applicant must be-

 

  • under the age of 18 years at the date of application, or where the child has turned 18 years of age since the applicant was first granted entry clearance or leave to remain as a parent under this Appendix, must not have formed an independent family unit or be leading an independent life;

  • living in the UK; and

  • a British Citizen or settled in the UK; or

  • have lived in the UK continuously for at least the 7 years immediately preceding the date of application and paragraph EX.1. applies.

 

E-LTRPT.2.3 provides that either

  • the applicant must have sole parental responsibility for the child or the child normally lives with the applicant and not their other parent (who is a British Citizen or settled in the UK), and the applicant must not be eligible to apply for leave to remain as a partner under this Appendix; or

  • the parent or carer with whom the child normally lives must be-

  • (i) a British Citizen in the UK or settled in the UK(ii) not the partner of the applicant (which here includes a person who has been in a relationship with the applicant for less than two years prior to the date of application); and(iii) the applicant must not be eligible to apply for leave to remain as a partner under the Appendix.

 

E-LTRPT.2.4 states that:

 

The applicant must provide evidence that they have either-

 

  • sole parental responsibility for the child, or that the child normally lives with them; or

  • direct access (in person) to the child, as agreed with the parent or carer with whom the child normally lives or as ordered by a court in the UK; and

 

The applicant must provide evidence that they are taking, and intend to continue to take, an active role in the child’s upbringing.

 

E-LTRPT.3.1 provides that the applicant must not be in the UK-

 

  • as a visitor; or

  • with valid leave granted for a period of 6 months or less, unless that leave was granted pending the outcome of family court or divorce proceedings;

E-LTRPT.3.2. states that the applicant must not be in the UK –

 

  • on temporary admission or temporary release, unless:-the Secretary of State is satisfied that the applicant arrived in the UK more than 6 months prior to the date of application; and-paragraph EX.1. applies; or

  • in breach of immigration laws (except that, where paragraph 39E of these Rules applies, any current period of overstaying will be disregarded), unless paragraph EX.1. applies.

 

In addition to the suitability requirements, any application on the basis of family life in the UK under Appendix FM is subject to provisions of the General Grounds for Refusal under paragraph A320 of Part 9 of the Immigration Rules.

 

Where an applicant meets the requirements for leave to remain as a parent of a child in the UK under paragraph R-LTRPT.1.1.(a), (b) and (d), the applicant will be granted leave to remain for a period of 30 months as a parent under paragraph D-LTRPT.1.2. of Appendix FM, on a 10-year route to settlement.

 

Under paragraph GEN.1.11A, this grant of leave will be subject to a condition of no recourse to public funds, unless the applicant has provided the decision maker with satisfactory evidence that they are destitute, or satisfactory evidence that there are particularly compelling reasons relating to the welfare of a child of a parent in receipt of a very low income.

 

Family Life as a Partner

 

The 10-year partner route is available to those who are in the UK as the partner of someone who is British or settled in the UK or is in the UK with limited leave as a refugee or granted humanitarian protection (who cannot benefit from provisions under Part 11 of the Immigration Rules regarding pre-flight family members).

 

The requirements to be met under the 10-year partner route are set out in paragraph R-LTRP.1.1.(a), (b) and (d) of Appendix FM. In order to qualify for a grant of leave under the 10-year partner route, an applicant must meet all of the suitability and eligibility requirements at every stage, including:

 

  • the applicant and their partner must be in the UK;

  • the applicant must have made a valid application for limited or indefinite leave to remain as a partner (subject to the exceptions set out in GEN.1.9. of Appendix FM and as outlined in Section 12.1 of this guidance); and

  • the applicant must not fall for refusal under Section S-LTR; Suitability leave to remain; and

  • the applicant meets the relationship requirements of paragraphs E-LTRP.1.2. – 1.12. and the immigration status requirements in E-LTRP.2.1. – 2.2.; and

  • paragraph EX.1.(a) or (b) applies.

 

E-LTRP.1.2. to 1.12 specifically provides:-

 

  • The applicant’s partner must be:-present and settled in the UK; or a British Citizen in the UK;in the UK with refugee leave or as a person with humanitarian protection

  • The applicant must be aged 18 or over at the date of application.

  • The partner must be aged 18 or over at the date of application.

  • The applicant and their partner must not be within the prohibited degree of relationship.

  • The applicant and their partner must have met in person.

  • The relationship between the applicant and their partner must be genuine and subsisting. (An applicant applying as an unmarried partner or same sex partner must have been living together with their partner in a relationship akin to a marriage or civil partnership for at least two years prior to the date of application and must provide documentary evidence of this. This is defined in GEN.1.2. of Appendix FM. In assessing whether a relationship is genuine and subsisting, the decision maker should refer to the Guidance on Genuine and Subsisting Relationships: FM 2.0 Genuine and Subsisting Relationship guidance).

  • If the applicant and partner are married or in a civil partnership it must be a valid marriage or civil partnership, as specified. (The decision maker must be satisfied that, if the applicant and their partner are married or in a civil partnership, that this is a valid marriage or civil partnership. The applicant and sponsor must provide evidence that their marriage or civil partnership is valid in the UK. The required evidence of marriage or civil partnership is specified in paragraphs 22 to 26 of Appendix FM-SE. In assessing whether a couple have a valid marriage or civil partnership, the decision maker should refer to the following guidance: FM 1.3 Recognition of Marriage and Divorce and FM 2.1 Eligibility, registration, dissolution & glossary of terms – civil partnerships)

  • Any previous relationship of the applicant or their partner must have broken down permanently, unless it is a relationship which falls within paragraph 278(i) of the Rules.

  • The applicant and their partner must intend to live together permanently in the UK and, in any application for further leave to remain as a partner (except where the applicant is in the UK as a fiancé(e) or proposed civil partner) and in any application for indefinite leave to remain as a partner, the applicant must provide evidence that, since entry clearance as a partner was granted under paragraph D-ECP1.1. or since the last grant of limited leave to remain as a partner, the applicant and their partner have lived together in the UK or there is good reason, consistent with a continuing intention to live together permanently in the UK, for any period in which they have not done so.

  • If the applicant is in the UK with leave as a fiancé(e) or proposed civil partner and the marriage or civil partnership did not take place during that period of leave, there must be good reason why and evidence that it will take place within the next 6 months.

  • The applicant’s partner cannot be the applicant’s fiancé(e) or proposed civil partner, unless the applicant was granted entry clearance as that person’s fiancé(e) or proposed civil partner.

 

E-LTRP.2.1 provides that the applicant must not be in the UK-

 

  • as a visitor; or

  • with valid leave granted for a period of 6 months or less, unless that leave is as a fiancé(e) or proposed civil partner, or was granted pending the outcome of family court or divorce proceedings

 

E-LTRP.2.2 states that the applicant must not be in the UK –

 

  • on temporary admission or temporary release, unless:-the Secretary of State is satisfied that the applicant arrived in the UK more than 6 months prior to the date of application; and paragraph EX.1. applies; or

  • in breach of immigration laws (except that, where paragraph 39E of these Rules applies, any current period of overstaying will be disregarded), unless paragraph EX.1. applies.

 

In addition to the suitability requirements, any application on the basis of family life in the UK under Appendix FM is subject to provisions of the General Grounds for Refusal under paragraph A320 of Part 9 of the Immigration Rules.

 

Where an applicant meets the requirements for leave to remain as a partner in the UK under paragraph R-LTRP.1.1.(a), (b) and (d), the applicant will be granted leave to remain for a period of 30 months as a partner under paragraph D-LTRP.1.2. of Appendix FM, on a 10-year route to settlement.

 

Under paragraph GEN.1.11A, this grant of leave will be subject to a condition of no recourse to public funds, unless the applicant has provided the decision maker with satisfactory evidence that they are destitute, or satisfactory evidence that there are particularly compelling reasons relating to the welfare of a child of a parent in receipt of a very low income.

 

If an applicant for the 10-year partner route fails to meet the requirements of the Rules, but there are exceptional circumstances on the basis of Article 8, leave to remain outside the Immigration Rules can be granted.

 

(6)HUMAN RIGHTS APPLICATIONS  UNDER THE 10YEAR ROUTE TO SETTLEMENT –PRIVATE  LIFE

 

The 10-year private life route is available to those who meet the suitability and eligibility requirements of paragraphs 276ADE(1)-DH at every stage, including those under paragraph 276ADE(1) which are:

 

  • the applicant must not fall for refusal under Section S-LTR.1.2 – 2.3 and S-LTR.3.1; Suitability leave to remain which is set out in Appendix FM; and

  • the applicant must have made a valid application for limited or indefinite leave to remain on the grounds of private life in the UK (subject to the exceptions set out in paragraph 276A0 of Part 7 and as outlined in Section 12.1 of this guidance); and

  • (iii)-(vi) the applicant must meet one of the relevant requirements.

 

In addition to the suitability requirements, any application on the basis of private life in the UK under paragraph 276ADE(1) is subject to provisions of the General Grounds for Refusal under paragraph A320 of Part 9 of the Immigration Rules.

 

In paragraph 276ADE(1) the provisions in (iii) to (v) require an applicant to have had a designated length of continuous residence in the UK.

 

“Continuous residence” is defined in paragraph 276A(a) of the Immigration Rules as:

 

  • “continuous residence” means residence in the UK for an unbroken period, and for these purposes a period shall not be considered to have been broken where an applicant is absent from the UK for a period of 6 months or less at any one time, provided that the applicant in question has existing limited leave to enter or remain upon their departure and return, but shall be considered to have been broken if the applicant:

  • (i) has been removed under Schedule 2 of the 1971 Act, section 10 of the 1999 Act, has been deported or has left the UK having been refused leave to enter or remain here; or

  • (ii) has left the UK and, on doing so, evidenced a clear intention not to return; or

  • (iii) left the UK in circumstances in which he could have had no reasonable expectation at the time of leaving that he would lawfully be able to return; oriv) has been convicted of an offence and was sentenced to a period of imprisonment or was directed to be detained in an institution other than a prison (including, in particular, a hospital or an institution for young offenders), provided that the sentence in question was not a suspended sentence; or

  • (v) has spent a total of more than 18 months absent from the United Kingdom during the period in question.

 

“Lived and/or living continuously” is defined in paragraph 276A(c) of the Immigration Rules as:

 

  • “lived continuously” and “living continuously” mean “continuous residence”, except that paragraph 276A(a)(iv) shall not apply.

 

To demonstrate length of residence in the UK, applicants will be expected to provide credible evidence from independent sources, for example letters from a housing trust, local authority, bank, school or doctor. To be satisfied the UK residence was continuous, the Home Office  normally expect to see evidence to cover every 12 month period of the length of continuous residence, and travel documents to cover the entire period.

 

Where an applicant meets the requirements for leave to remain on the basis of private life in the UK under paragraph 276ADE(1), the applicant will be granted leave to remain for a period of 30 months on the basis of private life under paragraph 276BE(1) of Part 7 of the Immigration Rules, on a 10-year route to settlement.

 

Under paragraph 276A02, this grant of leave will be subject to a condition of no recourse to public funds, unless the applicant has provided the decision maker with satisfactory evidence that they are destitute, or satisfactory evidence that there are particularly compelling reasons relating to the welfare of a child of a parent in receipt of a very low income.

 

If an applicant for the 10-year private life route fails to meet the requirements of the Rules, but there are exceptional circumstances on the basis of Article 8, leave to remain outside the Immigration Rules can be granted.

 

Paragraph 276ADE(1)(iii) – 20 years’ continuous residence

 

The 14-year rule (paragraph 276B(i)(b)), which provided a route to settlement on the grounds of long residence, lawful or unlawful, is now obsolete.  This has been replaced by a new private life route. The new Immigration Rules provide that at least 20 years’ continuous residence, lawful or unlawful, will, subject to suitability, normally be necessary to establish a claim to remain in the UK on the basis of the Article 8 right to respect for private life.

 

In order to meet this requirement, an applicant must have lived continuously in the UK for at least 20 years, discounting any period of imprisonment.

 

Paragraph 276ADE(1)(iv)-7Year Rule

 

In order to meet these requirements, a child under 18 must have lived continuously in the UK for at least 7 years, discounting any period of imprisonment.

 

The Home Office view is that criteria set out in paragraph 276ADE(1)(iv) reflects the duty in section 55 of the Borders, Citizenship and Immigration Act 2009 to have regard to the need to safeguard and promote the welfare of children who are in the UK, by which they  mean their best interests. The decision maker must have regard to the best interests of the child as a primary consideration (but not the only or the paramount consideration). They must fully consider the child’s best interests.

 

The decision maker must assess whether it is reasonable to expect a child to leave the UK under paragraph 276ADE(1)(iv), and must carefully consider all of the information provided in the application. All the relevant factors need to be assessed in the round.

 

Paragraph 276ADE(1)(v) – Adult under 25years  who has spent half of their life continuously in the UK

 

In order to meet the requirements, an applicant aged between 18 and 24 must have lived continuously in the UK for at least half their life, discounting any period of imprisonment.

 

Paragraph 276ADE(1)(vi) – Less than 20years residence and obstacles to integration

 

Paragraph 276ADE(1)(vi) of the Immigration Rules, allows an applicant who is over the age of 18 and who has lived continuously in the UK for less than 20 years, to meet the requirements of this rule if they can demonstrate there would be very significant obstacles to the applicant’s integration into the country to which he would have to go if required to leave the UK.

 

When assessing whether there are “very significant obstacles to integration into the country to which they would have to go if required to leave the UK”, the Home office starting  point  is to assume that the applicant will be able to integrate into their country of return, unless they can demonstrate why that is not the case. The onus is on the applicant to show that there are very significant obstacles to that integration.

 

The decision maker will expect to see original, independent and verifiable documentary evidence of any claims made in this regard.

 

The decision maker is expected to consider all the reasons put forward by the applicant as to why there would be obstacles to their integration in the country of return.

 

The decision maker is also expected to consider the specific obstacles raised by the applicant. They will also set these against other factors in order to make an assessment in the individual case.

 

Some considerations that the home office will take into account include:

 

  • Cultural background

  • Length of time spent in the country of return

  • Family, friends and social network

  • Applicant has no friends or family members in the country of return

  • Applicant has never lived in the country of return or only spent early years there

  • Applicant cannot speak any language spoken in the country of return

  • Applicant would have no employment prospects on return

  • Private life in the UK

(7)ARTICLE 8 OF THE ECHR – EXCEPTIONAL CIRCUMSTANCES OUTSIDE THE IMMIGRATION RULES

 

First, the decision maker must consider whether the applicant meets the requirements of the Rules, and if they do, leave under the Rules should be granted.

 

Where an applicant does not meet the requirements of the Rules under Appendix FM and paragraph 276ADE(1)-DH, the decision maker must go on in every case to consider whether there are exceptional circumstances which warrant a grant of leave outside the Rules on Article 8 grounds.

 

The Home Office would consider all the factors raised by the application,  to assess whether there are exceptional circumstances which mean refusal of the application would result in unjustifiably harsh consequences for the applicant or their family such that refusal would not be proportionate under Article 8. If there are exceptional circumstances, leave outside the Rules should be granted. If not, the application should be refused

 

In determining whether there are exceptional circumstances, the Home Office decision-maker is expected to  consider all relevant factors raised by the applicant and weigh them against the public interest under Article 8. Examples of relevant factors include the following:

 

  • The best interests of any child in the UK affected by the decision

  • The nature of the family relationships involved

  • The immigration status of the applicant and their family members.

  • The nationalities of the applicant and their family members.

  • How long the applicant and their family members have lawfully lived in the UK,

  • The likely circumstances the applicant’s partner and/or child would face in the applicant’s country of return.

  • Whether there are any factors which might increase the public interest in removal,

  • Cumulative factors

 

Where an applicant under the family and private life Rules falls to be granted leave to remain because exceptional circumstances apply in their case, they should be granted leave outside the Rules.

 

Where leave outside the Rules is being granted on the basis of Article 8 family life, then the provisions of paragraphs GEN.1.10 to GEN.1.11 of Appendix FM apply. Leave outside the Rules in this case will normally be granted for a period of 30 months.

 

Where leave outside the Rules is being granted on the basis of Article 8 private life, then the provisions of paragraphs 276A00 and 276BE(2) of Part 7 apply. Leave outside the Rules in this case will normally be granted for a period of 30 months.

 

Under paragraph GEN.1.11A. for family life, and paragraph 276A02 for private life, the grant of leave will be subject to a condition of no recourse to public funds, unless the applicant has provided the decision maker with satisfactory evidence that they are destitute, or satisfactory evidence that there are particularly compelling reasons relating to the welfare of a child of a parent in receipt of a very low income.

 

Applicants granted leave outside the Rules may apply for further leave and may be granted further leave outside the Rules if they continue to qualify for it. After 10 years’ continuous leave they can apply for indefinite leave to remain under the 10-year long residence route if they qualify for it.

 

(8)COMPASSIONATE FACTORS – LEAVE OUTSIDE THE IMMIGRATION RULES

 

Immigration Directorate Instruction Family Migration: Appendix FM Section 1.0b Family Life (as a Partner or Parent) and Private Life: 10-Year Routes, August 2015, is also the   relevant guidance in this respect.

 

Compassionate factors are compelling compassionate reasons on a basis other than family or private life under Article 8, which might justify a grant of leave to remain outside the Immigration Rules, even though the applicant has failed to meet the requirements of the Rules and there are no exceptional circumstances in their case.

 

While exceptional circumstances on the basis of Article 8 must be considered in every case falling for refusal under the Rules, compassionate factors only need to be considered if they are specifically raised by the applicant.

 

Compassionate factors are, broadly speaking, exceptional circumstances, e.g. relating to serious ill health, which might mean that a refusal of leave to remain would result in unjustifiably harsh consequences for the applicant or their family, but not constitute a breach of Article 8.

 

In considering compassionate factors, the decision maker must consider all relevant factors raised by the applicant.

 

Home Office Decision makers are instructed to ensure that where an applicant is granted limited leave to remain on the basis of compassionate factors, the decision letter and associated status documentation clearly show that the grant has been given outside the Immigration Rules on the basis of compassionate factors, and should not indicate that the grant is on the basis of their family or private life.

 

(9)CLAIMS BASED ON SERIOUS MEDICAL  CONDITIONS

 

Applicants may claim that they suffer from a serious medical condition and that their return and the consequent withdrawal of medical treatment being received in the UK would amount to inhuman or degrading treatment contrary to Article 3 of the ECHR.

 

My recent blog article on medical conditions cases  might be  of use in this regards  :

 

Paposhvili ECHR: An Easing of The UK Courts Restrictive Approach To Article 3 Medical Condition Cases?

 

CONCLUSION

 

Clearly, prior to seeking  to depart from the UK,  a thorough  review of personal circumstances,  in conjunction  with the relevant  legal provisions  must be undertaken. Where  a claimant  has been trying their best over the years to  advance their claim(s) on their own behalf,  but doing so unsuccessfully, seeking a review  opinion from a  well chosen and  experienced  immigration legal adviser  would not go amiss.

 

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s