Partner, Parent and Private Life on The 10year Route to Settlement: Your Frequently Asked Questions Answered

On 23 February 2018, new voluminous Home Office Guidance was published in relation to Article 8 applications or claims for leave to remain on the basis of family life as a partner or parent or on the basis of private life, on a 10-year route to settlement, ie Appendix FM Section 1.0b, family life (as a partner or parent) and private life: 10-year routes

The indicated purpose for updating the guidance is to “reflect Rules changes, minor corrections and alterations since August 2015”.

Voluminous though the guidance might be, it is important to narrow down  the most applicable catergory so as to supplement or increase awareness in relation to the intended application route. For example, where the applicant intends to rely upon their relationship with both their British child and the British parent as part of their family unit, there is no need to have regard to the Parent Route as this will not apply.

The entire guidance seems to expressly mention only three Supreme Court cases ie, ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, MM (Lebanon) & Ors, R( on the applications of) v Secretary of State and another [2017] UKSC 10 and Agyarko and Ikuga, R (on the applications of) v Secretary of State for the Home Department [2017] UKSC 11. It is therefore suggested that when having regard for example to the 7year Rule and considerations of whether it is reasonable for the relevant child to leave the UK, that specific relevant caselaw in the lower courts be appropriately factored into the equation- it is the norm that in the event of a refusal decision, the Home Office will not  refer to such caselaw however the Tribunal will of course be bound to consider relevant caselaw when considering an appeal before it.

 

THE 10YEAR ROUTE- WHAT ARE THE RELEVANT PROVISIONS?

 

  • Paragraphs GEN.1.1. to GEN.3.3. of Appendix FM – these set out the general provisions. For guidance on paragraphs GEN.3.1. to 3.3., see section 13 of Appendix FM 1.0a: Family Life (as a Partner or Parent): 5-Year Routes

  • Paragraphs 276A00 to 276A04 of Part 7 of the Immigration Rules – these set out the general provisions.

  • Paragraph GEN.1.5. of Appendix – if the Secretary of State has reasonable cause to doubt the genuineness of any document submitted in support of an application, and, having taken reasonable steps to verify the document, is unable to verify that it is genuine, the document will be discounted for the purposes of the application.

  • Paragraph GEN.1.14. of Appendix FM and paragraph 276A03 of Part 7 introduce a condition on all applicants aged 18 or over granted leave to enter or remain under Appendix FM or on the basis of private life, whether this leave is granted under the Rules or outside the Rules, prohibiting them from undertaking studies in a discipline listed in Appendix 6 of the Immigration Rules without first obtaining an Academic Technology Approval Scheme (ATAS) clearance certificate from the CounterProliferation Department of the Foreign and Commonwealth Office. This also applies to those who will be 18 before that period of entry clearance or limited leave expires.

  • Paragraph R-LTRP.1.1.(a), (b) and (d) of Appendix FM- sets out the requirements to be met for leave to remain under the 10-year partner route. This is subject to the exceptions set out in GEN.1.9. of Appendix FM.

  • Paragraph R-LTRPT.1.1.(a), (b) and (d) of Appendix FM sets out the requirements to be met for leave to remain under the 10-year parent route . This is subject to the exceptions set out in GEN.1.9. of Appendix FM.

  • Paragraphs 276ADE(1) of the Immigration Rules sets out the suitability and eligibility requirements in relation to the 10-year private life route. This is subject to the exceptions set out in paragraph 276A0 of Part 7 of the Rules. 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. General grounds for refusal (modernised guidance)

 

WHAT IS THE DIFFERENCE BETWEEN THE 5YEAR AND 10YEAR ROUTE TO SETTLEMENT?

 

Appendix FM provides two routes to settlement on the basis of family life as a partner or parent. These are a 5-year route and a 10-year route where:

 

The 5year route:

 

The 5-year route as a partner or parent is for those who meet all the suitability and eligibility requirements of the Immigration Rules at every stage.

 

Where an applicant for leave to remain under the 5-year partner or parent route fails to meet certain of the eligibility requirements, their application under that route will be refused, and considered under the 10-year partner, parent or private life routes. Guidance on considering an application for leave to remain made under the 5-year partner or parent route can be found here: Appendix FM 1.0a: Family Life (as a Partner or Parent): 5-Year Routes

A person who is in the UK and wishes to remain here with their partner who is a British citizen or a settled person, or who wishes to remain in the UK as the child of a person with limited leave to remain as a partner under Appendix FM, may apply for the 5-year route using the online family application form, or paper form FLR(M).

A person who is in the UK and wishes to remain here on the parent route, or who wishes to remain in the UK as the child of a person with limited leave to remain as a parent under Appendix FM, may apply for the 5-year route using the online family application form or paper form FLR(FP).

Relevant previous blog posts include:

Meeting the 5year route to settlement as a Partner or Parent: Your frequently asked questions answered

How to meet the minimum income financial requirement through a re-structured Appendix FM

 

The 10year route:

 

The 10-year route as a partner or parent applies:

 

  • in respect of applications for leave to remain as a partner or parent, to those who meet all the suitability requirements, but only certain of the eligibility requirements as a partner or parent where paragraph EX.1. of Appendix FM applies and is met. Paragraph EX.1. is not an exception to the Rules as a whole, but to certain eligibility requirements for leave to remain under the 5year partner and parent routes under Appendix FM

  • where entry clearance or leave to remain is granted following consideration under paragraph GEN.3.1. or paragraph GEN.3.2. of Appendix FM and in light of the exceptional circumstances to which that paragraph refers

An applicant granted leave to remain 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 10 years (120 months) in the UK with leave under that route.

 

The Guidance, Appendix FM Section 1.0b, family life (as a partner or parent) and private life: 10-year routes is to be used for all decisions made on or after 22 February 2018 , by Home Office decision makers considering whether to grant leave to remain on a 10-year route to settlement following a valid human rights application or claim for leave to remain (unless a valid application is not required, including under paragraph GEN.1.9. of Appendix FM or paragraph 276A0 of Part 7) on the basis of family life as a partner or parent or on the basis of private life in accordance with the following parts of the Immigration Rules:

 

  • paragraphs 276A0 – 276A04 and 276ADE(1)-DH of Part 7

  • paragraphs A277, 277-280, 289AA, 295AA and 296 of Part 8

  • Appendix FM

Appendix FM to and paragraph 276ADE(1) of the Immigration Rules provide the basis on which a person can apply for entry clearance to the UK or leave to remain in the UK on family life grounds or leave to remain here on private life grounds.

The Home Office position is that the Immigration Rules reflect the qualified nature of Article 8, setting requirements which properly balance the individual right to respect for private or family life with the public interest in safeguarding the economic well-being of the UK by controlling immigration, in protecting the public from foreign criminals and in protecting the rights and freedoms of others. The Rules also take into account the need to safeguard and promote the welfare of children.

These Rules, together with the guidance on exceptional circumstances and children’s best interests contained in the Immigration Directorate Instructions, are intended to provide a clear basis for considering immigration cases in compliance with ECHR Article 8, as approved by the Supreme Court in February 2017 in MM (Lebanon) & Ors, R( on the applications of) v Secretary of State and another [2017] UKSC 10 and Agyarko and Ikuga, R (on the applications of) v Secretary of State for the Home Department [2017] UKSC 11

Appendix FM must be read together with Appendix FM-SE, which sets out the specified evidence which must be submitted with an application for entry clearance or limited leave to remain as a partner or parent. An applicant must provide documentary evidence relating to the relationship requirements specified in Appendix FM-SE when making a leave to remain application on a 10-year route under Appendix FM, such as evidence that the marriage or civil partnership is valid in the UK

The Immigration Act 2014 received Royal Assent on 14 May 2014. From 28 July 2014, section 19 of the act amended the Nationality, Immigration and Asylum Act 2002 to set out Parliament’s view of what the public interest requires in immigration cases engaging the qualified right to respect for private and family life under ECHR Article 8. It requires the courts to give due weight to that public interest when deciding such cases. This means that the public interest in the maintenance of effective immigration control and in family migrants being financially independent and able to speak English, as required by the family Immigration Rules, is now underpinned in primary legislation.

In an application for leave to remain under the 10-year family or private life routes, paragraph 353 of the Immigration Rules applies where an earlier asylum or human rights claim has been refused, withdrawn or treated as withdrawn under paragraph 333C of the Rules. The applicant must have raised asylum or human rights issues by means of an application or claim which was considered by the Home Office. The Home Office decision maker should refer to the following guidance for further information: Asylum policy instruction: further submissions

 

HOW DOES AN APPLICANT APPLY UNDER THR 10YEAR ROUTE?

An applicant in the UK can apply directly for the 10-year partner, parent or private life routes using the online family application form or paper form FLR(FP), for example where they know they cannot meet certain of the eligibility requirements of the 5-year partner or parent routes.

As regards validity of leave to remain applications, the following blog post applies:

Know The Procedure: Brand New Home Office Guidance on Validity and Rejection of Leave to Remain Applications

 

 

IN WHAT CIRCUMSTANCES WILL A VALID APPLICATION NOT BE REQUIRED?

Under Appendix FM a valid application is not required when the Article 8 family or private life claim is raised:

 

  • as part of an asylum claim, or as part of a further submission in person after an asylum claim has been refused. Where a person has made a claim for asylum or humanitarian protection, the Immigration Rules in paragraphs 276A0 of Part 7, A277C of Part 8 and 326B of Part 11, and paragraph GEN.1.9. of Appendix FM, provide that any Article 8 claim will be considered in line with the 10-year partner or parent routes in Appendix FM and private life routes in paragraphs 276ADE(1) to 276DH of the Immigration Rules, or private life route under 276ADE(1) to DH.   The asylum decision maker should consult the relevant policy instruction for guidance on the asylum/humanitarian protection part of the decision-making process.

  • where a migrant is in immigration detention. A migrant in immigration detention or their representative must submit any application or claim raising Article 8 to a prison officer, a prisoner custody officer, a detainee custody officer or a member of Home Office staff at the migrant’s place of detention. Paragraphs 276A0 of Part 7 and GEN.1.9 of Appendix FM set out that where an applicant is in immigration detention, they or their representative must submit any application or claim raising Article 8 to a prison officer, a prisoner custody officer, a detainee custody officer, or a member of Home Office staff at their place of detention. The claim should be considered under the relevant 10-year partner or parent routes in Appendix FM and the private life routes in paragraphs 276ADE(1) to 276DH, or private life route in paragraphs 276ADE(1) to DH, by virtue of paragraph 400 of Part 13 of the Immigration Rules.

  • in an appeal (subject to the consent of the Secretary of State where applicable)

 

A valid application is also not required where the Secretary of State decides to determine any Article 8 claim in the absence of such an application, for example under paragraph 400 of Part 13 of the Immigration Rules where the person’s removal from the UK is contemplated.

 

Where a valid application is not required, as set out above and in paragraph GEN.1.9. of Appendix FM and paragraph 276A0 of Part 7 of the Immigration Rules, the decision maker should consider the Article 8 claim under the relevant requirements in Appendix FM when considering family life or paragraph 276ADE(1)276DH when considering private life.

 

A person who has made a claim or wishes to make a claim for leave on the basis of Article 8 and who is not required to make a valid application can only be considered for leave to remain under the 10-year partner, parent or private life route to settlement.

 

If the person wishes to be considered under the 5-year partner or parent route, they must submit a valid application.

 

Where an applicant has been granted leave to remain on the basis of Article 8 (under Appendix FM or paragraph 276ADE(1)) under a 10-year route to settlement without submitting a valid application, they will be required to submit a valid application, on the correct form and accompanied by the correct fee (subject to any fee waiver they may qualify for), when they come to apply for further leave to remain or indefinite leave to remain (unless they once again fall within paragraph GEN.1.9. or paragraph 276A0 or the Secretary of State otherwise decides to determine any Article 8 claim in the absence of such an application).

 

The decision maker dealing with asylum/humanitarian protection or removal cases should deal with the Article 8 part of any claim by considering whether the applicant meets the requirements of the 10-year partner route under paragraph RLTRP.1.1(a), (b) and (d), or the 10-year parent route under paragraph RLTRPT.1.1(a), (b) and (d) of Appendix FM, and the 10-year private life route under paragraph 276ADE(1) or the private life route in paragraphs 276ADE(1).   Where the requirements are met, the decision maker may grant leave to remain for a period of 30 months, under the relevant route. Under paragraph GEN.1.11A of Appendix FM for family life, and paragraph 276A02 for private life, the grant of leave will normally 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, or satisfactory evidence that there are exceptional circumstances relating to the applicant’s financial circumstances which, in the view of the decision maker, requires them not to impose a condition of no recourse to public funds. The applicant will be eligible to apply for indefinite leave to remain (settlement) after 120 months if they qualify. This consideration can only result in leave to remain granted under a 10-year route to settlement if the applicant meets the requirements of the relevant rules. If the applicant wishes to be considered for leave to remain under the 5-year route as a partner or parent, they will have to submit a separate, valid application for that route. If the Article 8 claim is refused, the decision maker should refuse leave to remain family life under paragraph D-LTRP.1.3. or D-LTRPT.1.3. of Appendix FM and private life under paragraph 276CE.   If the requirements of the 10-year partner or parent routes in Appendix FM or paragraphs 276ADE(1)-276DH on private life are not met, the decision maker must go on to consider whether there are any exceptional circumstances which would mean that refusal would result in unjustifiably harsh consequences for the individual or their family, such that refusal of the application would not be proportionate. If after considering the case the Article 8 claim is refused, any reasons for refusal letter must explain why the requirements of the Immigration Rules have not been met. It must fully outline and explain the consideration of exceptional circumstances, including why it is not considered there are any exceptional circumstances in the case.

 

IS SWITCHING FROM THE 10YEAR ROUTE TO THE 5YEAR ROUTE TO SETTLEMENT PERMITTED?

 

An applicant granted leave to remain under the 10-year partner, parent or private life routes may, qualify for settlement more quickly if they are successful in a subsequent valid application for leave under the 5-year partner or 5year parent route of 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.

 

HOW DOES THE HOME OFFICE APPROACH APPLICATIONS UNDER THE 10YEAR ROUTE?

 

There is two-stage approach in considering leave to remain applications under the family and private life Immigration Rules in Appendix FM and paragraphs 276ADE(1)-DH of Part 7.

 

  • First, the decision maker must consider whether the applicant meets the requirements of the family Immigration Rules without consideration of exceptional circumstances under paragraph GEN.3.2. of Appendix FM, and the private life Immigration Rules under paragraphs 276ADE(1)-DH of Part 7, and if they do, leave under the relevant Rules should be granted.

  • Second, if an applicant does not otherwise meet the relevant requirements of the Immigration Rules, the decision maker must move on to consider, under paragraph GEN.3.2. of Appendix FM or outside the Rules in the case of an application for leave to remain made solely on the basis of private life in the UK, whether, in the light of all the information and evidence provided by the applicant, there are exceptional circumstances which would render refusal a breach of ECHR Article 8 because it would result in unjustifiably harsh consequences for the applicant, their partner, a relevant child or another family member whose Article 8 rights it is evident from the information provided by the applicant would be affected. If there are such exceptional circumstances, leave to remain should be granted on a 10-year route to settlement (as a partner or parent under Appendix FM or outside the Rules on the basis of private life). If not, the application should be refused.

 

 

HOW DOES AN APPLICANT MEET THE 10-YEAR PARTNER ROUTE?

 

Requirements to be met for leave to remain under the 10-year partner route are set out in paragraph R-LTRP.1.1.(a), (b) and (d) of Appendix FM. To qualify for leave, the applicant must meet all these requirements, subject to the exceptions set out in GEN.1.9. of Appendix FM.

 

What is a Partner?

 

The 10-year partner route is available to those 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 (excluding those pre-flight family members who can qualify under Part 11 of the Immigration Rules).

 

Under paragraph GEN.1.2. of the General Provisions in Appendix FM, a “partner” is defined as one of the following:

 

  • the applicant’s spouse (which must be evidenced by a marriage certificate)

  • the applicant’s civil partner (which must be evidenced by a civil partnership certificate)

  • the applicant’s fiancé(e) or proposed civil partner

  • a person who has been living together with the applicant in a relationship akin to a marriage or civil partnership for at least two years prior to the date of application (which the Home Office expect to be evidenced by documents showing that the couple have been living together at the same address for at least two years).

The two-year period of living together for a couple who are not married or in a civil partnership must have been completed prior to the date of application. However, the two-year period does not have to have been completed immediately preceding the date of application if, for example, the couple are currently living apart for work reasons in order to meet the financial requirements of the Rules, provided that the relationship continues to be genuine and subsisting at the date of application.

 

An applicant’s partner must either be a British citizen in the UK, present and settled in the UK, or in the UK with refugee leave or with humanitarian protection. Under paragraph 6 of the Immigration Rules “present and settled” or “present and settled in the UK” means that the person concerned is settled in the UK and, at the time that an application under these Rules is made, is physically present here or is coming here with or to join the applicant and intends to make the UK their home with the applicant if the application is successful.

 

In any application under Appendix FM, or as a fiancé(e), proposed civil partner, spouse, civil partner, unmarried partner, same sex partner, child, or adult dependant relative under Part 8, where the applicant’s sponsor is:

 

  • an EEA national with a permanent right to reside in the UK under European law, they must hold a valid residence permit issued under the Immigration (European Economic Area) Regulations 2000 which has been endorsed under the Immigration Rules to show permission to remain in the UK indefinitely, or a valid document certifying permanent residence issued under the Immigration (European Economic Area) Regulations 2006 or the Immigration (European Economic Area) Regulations 2016, in order to be recognised as present and settled in the UK

  • a non-EEA national with a permanent right to reside in the UK under European law, they must hold a valid residence document issued under the Immigration (European Economic Area) Regulations 2000 which has been endorsed under the Immigration Rules to show permission to remain in the UK indefinitely, or a valid permanent residence card issued under the Immigration (European Economic Area) Regulations 2006 or the Immigration (European Economic Area) Regulations 2016, in order to be regarded as present and settled in the UK.

 

Issues of note:

 

  • Couple to have met in person – The decision maker must be satisfied that the applicant and their partner have met in person . “To have met” has been interpreted by the Tribunal as “to have made the acquaintance of” which means that, provided the parties have made the acquaintance of each other, that acquaintance need not be in the context of marriage or civil partnership. This means for example that if the parties had been childhood friends, it could be acceptable, although the meeting of two infants would not. A mutual sighting or mere coming face-to-face followed by telephone or written contact would not suffice. The Tribunal decided that “met” implies a face-to-face meeting itself resulting in the making of mutual acquaintance. Where the decision maker is not satisfied that the couple have met in person, the application must be refused.

  • Genuine and subsisting relationship – The decision maker must be satisfied that the relationship between the applicant and their partner is 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 set out 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, Annex FM 2.0: genuine and subsisting relationship

  • Valid marriage or civil partnership-The decision maker must be satisfied that, if the applicant and their partner are married or in a civil partnership, this is a valid marriage or civil partnership under UK law or recognised as valid in the UK. The applicant and partner 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. Relevant Home Office Guidance is Annex FM 1.3: recognition of marriage and divorce and Annex FM 2.1: eligibility, registration, dissolution and glossary of terms

  • Previous relationship has broken down permanently-The decision maker must be satisfied that any previous relationship of the applicant or their partner has broken down permanently, unless it is a marriage or civil partnership which falls within paragraph 278(i) of the Immigration Rules. Where the applicant, their partner has, or both have previously been married or in a civil partnership, the applicant must provide evidence as specified in paragraphs 23 and 25 to 26 of Appendix FM-SE that the previous marriage or civil partnership has ended. Where the marriage or civil partnership of either the applicant or their sponsor to a previous partner has not been legally dissolved, the applicant may still be able to qualify under Appendix FM as an unmarried partner or same sex partner, provided that they meet the criteria set out in paragraph GEN.1.2. and they provide evidence that the new relationship is genuine and subsisting and that the previous relationship has broken down permanently.

  • Intention to live together permanently in the UK-The decision maker must be satisfied that the applicant and their partner intend to live together permanently in the UK.   Under paragraph 6 of the Immigration Rules “intention to live together permanently with the other” or “intend to live together permanently” means an intention to live together, evidenced by a clear commitment from both parties that they will live together permanently in the UK immediately following the outcome of the application in question or as soon as circumstances permit thereafter. In applications for further leave to remain or for indefinite leave to remain in the UK as a partner, where there have been limited periods of time spent outside of the UK during the period when the applicant had leave as a partner, this must be for good reasons and the reasons must be consistent with the intention to live together permanently in the UK. Good reasons could include time spent overseas in connection with the applicant’s or their partner’s employment, holidays, training or study or a family emergency or illness.   Each case must be judged on its merits, taking into account reasons for travel, length of absence and whether the applicant and partner travelled and lived together during the time spent outside the UK. These factors will need to be considered against the requirements of the Rules. If the applicant, their partner or both have spent the majority of the period overseas, there may be reason to doubt that the couple intend to live together permanently in the UK.

 

What is the relevance of EX.1. Exceptions to certain eligibility requirements for leave to remain as a partner?

 

To meet the requirements of R-LTRP.1.1.(d)(iii), paragraph EX.1.(a) or (b) must apply in the applicant’s case.

 

Where paragraph EX.1.(a) or (b) does not apply, an applicant will not be able to meet the requirements of R-LTRP.1.1.(d)(iii), regardless of whether they meet RLTRP.1.1.(d)(i) and (ii).

 

Paragraph EX.1. is not a standalone provision under which leave can be granted. Rather, where it applies, certain eligibility requirements under the 5-year partner route (as to immigration status, finances and English language) do not apply. In these circumstances, where the applicant meets the relevant requirements, they will be granted leave under the 10-year partner route instead.

 

An applicant being considered under the 10-year partner route must meet the requirements in paragraph EX.1. of Appendix FM which states:

 

EX.1. This paragraph applies if

(a) (i) the applicant has a genuine and subsisting parental relationship with a child who-

(aa) is under the age of 18 years;

(bb) is in the UK;

(cc) is a British Citizen or has lived in the UK continuously for at least the seven years immediately preceding the date of application; and

(ii) taking into account their best interests as a primary consideration, it would not be reasonable to expect the child to leave the UK; or

(b) the applicant has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen, settled in the UK or in the UK with refugee leave or humanitarian protection, and there are insurmountable obstacles to family life with that partner continuing outside the UK.”

 

Paragraph EX.2. of Appendix FM states that:

 

“EX.2. For the purposes of paragraph EX.1.(b) “insurmountable obstacles” means the very significant difficulties which would be faced by the applicant or their partner in continuing their family life together outside the UK and which could not be overcome or would entail very serious hardship for the applicant or their partner.”

 

An applicant being considered under the 10-year partner route must meet the requirements set out at either EX.1.(a) or EX.1.(b). They do not have to meet both (a) and (b).

 

Even if the requirements in EX.1.(a) or (b) are met, an applicant will not qualify for leave to remain under the 10-year partner route on this basis if they do not meet all of the other requirements of paragraph R-LTRP.1.1(a), (b) and (d) of the Immigration Rules, including both the suitability requirements set out at paragraph RLTRP.1.1.(d)(i) and the eligibility requirements set out at paragraph RLTRP.1.1(d)(ii).

 

What does “reasonable to expect” in EX.1.(a) mean?

 

The requirements in paragraph EX.1.(a) reflect 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, by which is meant their best interests, as reflected in case law, in particular ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 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.

Where the decision maker determines under paragraph EX.1.(a)(i) that the applicant has a genuine and subsisting parental relationship with a child under the age of 18 who is in the UK and is a British citizen or has lived in the UK continuously for at least the seven years immediately preceding the date of application, the decision maker must undertake an assessment under paragraph EX.1.(a).

First, the decision maker must assess whether refusal of the application will mean that the child will have to leave the UK or is likely to have to do so. Where the decision maker decides that the answer to this first stage is yes, then they must go on to consider secondly, whether, taking into account their best interests as a primary consideration, it is reasonable to expect the child to leave the UK. In doing so the decision maker must carefully consider all the information provided by the applicant, together with any other relevant information of which the decision maker is aware.

Where the decision maker concludes under the first stage of this test under EX.1(a), that refusal of the application will not mean that the child will have to leave the UK or be likely to have to do so, because they will remain in the UK with another parent or carer, paragraph EX.1.(a) will not apply.

For paragraph EX.1.(a) to apply, there must be an expectation that refusal will mean that the child will have to leave the UK. Accordingly, where that is not the case, it will not be necessary to consider whether it would be reasonable to expect the child to leave the UK, but it will be necessary to consider the effect of the applicant’s removal on the child with reference to the child’s best interests. If it is considered that refusal would lead to unjustifiably harsh consequences for the applicant, the child or their family, leave will fall to be granted on the basis of paragraph GEN.3.2. of Appendix FM.

 

What does “ Insurmountable obstacles” in EX.1.(b) mean?

 

The definition of insurmountable obstacles in paragraph EX.1.(b) is set out in paragraph EX.2. of Appendix FM as:

 

“EX.2. For the purposes of paragraph EX.1.(b) “insurmountable obstacles” means the very significant difficulties which would be faced by the applicant or their partner in continuing their family life together outside the UK and which could not be overcome or would entail very serious hardship for the applicant or their partner.”

 

According to Home Office Guidance, this means that an insurmountable obstacle can take 2 forms:

 

  • a very significant difficulty which would be literally impossible to overcome, so it would be impossible for family life with the applicant’s partner to continue overseas – for example because they would not be able to gain entry to the proposed country of return

  • a very significant difficulty which would be faced by the applicant or their partner in continuing their family life together outside the UK and which could be overcome but to do so would entail very serious hardship for one or both of them

 

When assessing an application under paragraph EX.1.(b) and determining whether there are “insurmountable obstacles”, the Home Office decision maker should have regard to the individual circumstances of the applicant and their partner, based on all the information that has been provided. The onus is on the applicant to show that there are insurmountable obstacles, not on the decision maker to show that there are not.

 

The assessment of whether there are “insurmountable obstacles” is a different and more stringent assessment than whether it would be “reasonable to expect” the applicant’s partner to join them overseas.

 

Relevant country of origin information should be referred to when assessing insurmountable obstacles. The Home Office decision maker should consider the specific claim made and the relevant national laws, attitudes and situation in the relevant country.

 

The assessment of whether family life can continue overseas will generally consider the likely situation in the proposed country of return unless there is information to suggest that the applicant or their partner might have a choice about where they choose to relocate to, such as where one or both of them has or have a right to reside in a country other than the country of proposed return, or where one or both of them has or have more than one nationality. In that case the decision maker should consider whether there are insurmountable obstacles to family life continuing in any of the relevant countries.

 

Lack of knowledge of a language spoken in the country in which the couple would be required to live would not usually amount to an insurmountable obstacle.

 

Being separated from extended family members – such as where the partner’s parents, their siblings or both live here – would not usually amount to an insurmountable obstacle, unless there were particular factors in the case to establish the unusual or exceptional dependency required for Article 8 to be engaged.

 

A material change in quality of life for the applicant and their partner in the country of return, such as the type of accommodation they would live in, or a reduction in their income or standard of living, would not usually amount to an insurmountable obstacle, unless this would lead to particular hardship or there were particular exceptional factors in the case.

 

The factors which might be relevant when considering whether an insurmountable obstacle exists include but are not limited to:

 

  • Ability to lawfully enter and stay in another country

  • Serious cultural barriers to relocation overseas

  • The impact of a mental or physical disability or of a serious illness which requires ongoing medical treatment

  • The absence of governance or security in another country

What is the duration of leave granted?

 

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 as a partner for a period not exceeding 30 months under paragraph DLTRP.1.2. of Appendix FM, on a 10-year route to settlement.

 

Where a partner is being granted on the basis of paragraph D-LTRP.1.2., any dependent child included in the application who requires leave should be considered under paragraph R-LTRC of Appendix FM. If the child meets the requirements of those Rules, they should be granted leave to remain under paragraph D-LTRC.1.1. of the same duration and subject to the same conditions in respect of recourse to public funds as their parent who is being, or has been, granted leave to remain as a partner under Appendix FM.

 

Under paragraph GEN.1.11A., this grant of leave will normally 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 (being granted leave as a partner) in receipt of a very low income, or satisfactory evidence that there are exceptional circumstances relating to the applicant’s financial circumstances which, in the view of the decision maker, requires them not to impose a condition of no recourse to public funds.

 

When will an application for leave to remain as a partner be refused?

 

The application will fall for refusal if the decision maker is not satisfied that all of the requirements of R-LTRP.1.1.(a), (b) and (d) are met.

 

Where an applicant does not meet those requirements of the partner route under Appendix FM, the decision maker must consider whether the applicant meets the requirements for leave to remain on the basis of private life in the UK. The parent route under Appendix FM will not be relevant if the applicant has a partner.

If the applicant does not qualify for leave to remain on the basis of private life and there are no exceptional circumstances as specified above, the application should be refused under paragraph D-LTRP.1.3 of Appendix FM.

 

The decision letter must be clear about the information considered, including evidence submitted by the applicant, together with any relevant country information (which may be considered as part of an assessment in relation to insurmountable obstacles and what is considered to be in the best interests of a child, if relevant). The decision letter should make plain that all relevant factors have been assessed, in the round.

 

HOW DOES AN APPLICANT MEET THE 10YEAR PARENT ROUTE?

 

Requirements to be met for leave to remain under the 10-year parent route are set out in paragraph R-LTRPT.1.1.(a), (b) and (d) of Appendix FM. To qualify for leave, the applicant must meet all these requirements, subject to the exceptions set out in GEN.1.9. of Appendix FM

 

The 10-year parent route provides a basis on which leave to remain can be granted to a parent who has sole responsibility for or direct access to a child following the breakdown of their relationship with the child’s other parent. The route is for applicants who meet one of the following:

 

  • has sole parental responsibility for their child

  • does not live with the child (who lives with a parent or carer who is a British citizen or settled here), but they have 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

  • is the parent with whom the child normally lives, rather than the child’s other parent who is British or settled

The Home Office decision maker must also be satisfied under paragraph E-LTRPT.2.4.(b) that in all cases the applicant has provided evidence that they are taking, and intend to continue to take, an active role in the child’s upbringing.

The parent route is not for couples with a child together who are in a genuine and subsisting partner relationship together. Applicants in this position must apply under the partner route where or once they are eligible to do so, or under the private life route. An applicant cannot apply under the parent route if they are or will be eligible to apply under the partner route, including where the applicant is in a partner relationship but the couple have not yet been living together for two years.

 

The 10-year parent route is available to those who are in the UK and who meet the relevant suitability and eligibility requirements, including the fact that the child with whom the applicant has a genuine and subsisting parental relationship must meet all of the following:

 

  • is under the age of 18 years at the date of application

  • is living in the UK

  • is a British citizen, or has lived in the UK continuously for at least the 7 years immediately preceding the date of application (whether or not the child has settled status here)

  • it would not be reasonable to expect the child to leave the UK

“Living in the UK” means that the child concerned is living in the UK at the time the date of application and is physically present here and the applicant intends to make the UK their home with the child, if the application is successful. A parent cannot rely on their relationship with a child who is overseas to obtain leave in this route.

 

The applicant must prove that the child with whom they have a relevant relationship is under the age of 18. The best evidence is the child’s birth certificate. If the applicant submits other forms of evidence, the decision maker must be satisfied that they prove the child is under the age of 18. Where a child has turned 18 years of age since the applicant was first granted entry clearance or leave to remain as a parent under Appendix FM, the child must not have formed an independent family unit or be leading an independent life. “Must not be leading an independent life” or “is not leading an independent life” means that the applicant does not have a partner (as defined in paragraph GEN.1.2. of Appendix FM); is living with their parents (except where they are at boarding school, college or university as part of their full-time education); is not employed fulltime (unless aged 18 years or over); is wholly or mainly dependent upon their parents for financial support (unless aged 18 years or over); and is wholly or mainly dependent upon their parents for emotional support. This is set out in paragraph 6 of the Immigration Rules.

 

 

What is a “Parent”?

 

As well as including a natural parent, under paragraph 6 of the Immigration Rules, a “parent” is defined as:

 

  • the stepfather of a child whose father is dead (and the reference to stepfather includes a relationship arising through civil partnership)

  • the stepmother of a child whose mother is dead (and the reference to stepmother includes a relationship arising through civil partnership)

  • the father as well as the mother of an illegitimate child where he is proved to be the father

  • an adoptive parent, where a child was adopted in accordance with a decision taken by the competent administrative authority or court in a country whose adoption orders are recognised by the UK, or where a child is the subject of a de facto adoption in accordance with the requirements of paragraph 309A of these Rules (except that an adopted child or a child who is the subject of a de facto adoption may not make an application for leave to enter or remain in order to accompany, join or remain with an adoptive parent under paragraphs 297 to 303)

  • in the case of a child born in the UK who is not a British Citizen, a person to whom there has been a genuine transfer of parental responsibility on the grounds of the original parent(s)’ inability to care for the child

 

 

What does “sole parental responsibility” mean?

 

Sole parental responsibility means that one parent has abdicated or abandoned parental responsibility, and the remaining parent is exercising sole control in setting and providing the day-to-day direction for the child’s welfare.

 

In assessing whether the applicant has sole parental responsibility for a child, the decision maker must consider if evidence has been provided to show that:

 

  • decisions have been taken and actions performed in relation to the upbringing of the child under the sole direction of the applicant, without the input of the other parent or any other person

  • the applicant parent is responsible for the child’s welfare and for what happens to them in key areas of the child’s life, and that others do not share this responsibility for the child

  • the applicant parent has exclusive responsibility for: -making decisions regarding the child’s education, health and medical treatment, religion, residence, holidays and recreation – protecting the child and providing them with appropriate direction and guidance – the child’s property – the child’s legal representation

In addition, the Home Office decision maker should note that:

 

  • sole parental responsibility is not the same as legal custody

  • significant or even exclusive financial provision for a child does not in itself demonstrate sole parental responsibility

  • where both parents are involved in the child’s upbringing, it will be rare for one parent to establish sole parental responsibility

  • sole parental responsibility can be recent or long-standing. Any recent change of arrangements should be scrutinised to make sure this is genuine and not an attempt to circumvent immigration control

Some day-to-day responsibility (or decision making) for the child’s welfare may be shared with others, for example, relatives or friends, for practical reasons, as long as the applicant is ultimately responsible for the welfare of the child. The decision maker is not considering whether the applicant (or anyone else) has day-to-day responsibility for the child, but whether the applicant has continuing sole control and direction of the child’s upbringing, including making all the important decisions in the child’s life. If not, then they do not have sole parental responsibility for the child. The decision maker must carefully consider each application on a case-by-case basis. The burden of proof is on the applicant to provide satisfactory evidence. In some instances, it may be appropriate to interview an applicant to establish whether they have sole responsibility for the child, or to contact the other parent (with the consent of the applicant) in order to confirm they have no parental responsibility.

 

What does “normally lives with” mean?  

 

This applies where both parents (one of whom is a British citizen or settled person) are no longer in a subsisting relationship, but have retained shared parental rights and responsibilities, and the child’s primary custodial residence preceding the date of application, as demonstrated by a court order or consensual agreement, is with one of them.   From 13 December 2012 applicants for leave to remain in the UK can apply in this category where they have either:

 

  • a joint residence order

  • other evidence of shared custody of a child or children in the UK

The purpose of this provision is to allow a migrant parent whose relationship with a British citizen or settled person has broken down, and who has shared or equal custody of a child here, to remain in the UK where it is in the child’s best interest for them to do so.

 

The fact that an applicant is simply a parent of a child in the UK is not enough to meet the requirements of the Rules.

 

The decision maker must be satisfied that:

 

  • the relationship between the applicant and the other parent has broken down and is no longer subsisting

  • the applicant has joint or shared custody of the child or children

  • evidence of shared custody has been provided in the form of a court order or consensual agreement with the British citizen or settled parent

  • evidence has been provided to demonstrate that the child normally lives with the applicant in the UK (and not their British citizen or settled parent); or that the child normally lives with their British citizen or settled parent and not the applicant, but has regular direct contact with the latter

The primary residence of the child is the residence where the child spends most of their time.

 

A child will not “normally live with” a parent whom the child occasionally lives with: for example, only at weekends, during holidays or by an overnight stay once a week.

 

There is no specified evidence that the applicant has to provide in order to demonstrate whom a child normally lives with, but the onus is on the applicant to show that a child normally lives with them or with the British citizen or settled parent.

 

Evidence to show that a child normally lives with a person may include correspondence from:

 

  • a court in the form of a court order showing joint or shared custody

  • the other partner confirming joint or shared custody

  • a doctor, hospital or dentist

  • a school, childcare provider or playgroup

  • the Department for Work and Pensions

  • HM Revenue & Customs

  • local authority children’s services

However, other evidence will also be accepted, provided that it enables the decision maker to be satisfied that a child normally lives with the stated person.

 

If the applicant does not have sole parental responsibility for the child and the child does not normally live with them, they must supply evidence to show that the parent or carer with whom the child normally lives is a British Citizen or settled in the UK and that that person cares for the child.

 

Evidence can include:

 

  • a British passport

  • a foreign passport endorsed with ‘indefinite leave to remain’ or ‘no time limit’

  • a letter from the Home Office confirming that the person is settled in the UK

  • evidence that the child resides with the British citizen or settled parent

 

What does “direct access in person” mean?

 

An applicant can qualify for leave as a parent if they have 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. The applicant must prove they have direct access in person to the child by submitting evidence such as:

 

  • a residence order or contact order granted by a court in the UK

  • a letter or affidavit from the UK-resident parent or carer of the child

  • evidence from a contact centre detailing contact arrangements

The above evidence, or a reasonable equivalent, should establish that the applicant parent has direct access in person to the child, and describe in detail the arrangements which allow for this. If an affidavit is submitted, it should be certified by a lawyer.

 

It is not enough for the applicant to provide evidence only that they have been granted direct access to a child. The Rules require the applicant to show that they have direct access in person to the child and are taking an active role in the child’s upbringing and will continue to do so. The decision maker must be satisfied that direct contact in person with the child is the main reason for the application.

 

What is the relevance of EX.1. Exceptions to certain eligibility requirements for leave to remain as a parent?

 

To meet the requirements of R-LTRPT.1.1.(d)(iii) as a parent, paragraph EX.1.(a) must apply in the applicant’s case.   Where paragraph EX.1.(a) does not apply, an applicant will not be able to meet the requirements of R-LTRPT.1.1.(d)(iii), regardless of whether they meet the requirements of R-LTRPT.1.1.(d)(i) and (ii).

 

Paragraph EX.1. is not a standalone provision under which leave can be granted. Rather, where it applies, certain eligibility requirements which apply under the 5-year parent route (as to immigration status, finances and English language) do not apply. In these circumstances, where the applicant meets the relevant requirements, they will be granted leave under the 10-year parent route instead.

 

Applicants being considered under the 10-year parent route must meet the requirements in paragraph EX.1. of Appendix FM which states:

 

“EX.1. This paragraph applies if

(a) (i) the applicant has a genuine and subsisting parental relationship with a child who-

(aa) is under the age of 18 years;

(bb) is in the UK;

(cc) is a British Citizen or has lived in the UK continuously for at least the seven years immediately preceding the date of application; and

(ii) taking into account their best interests as a primary consideration, it would not be reasonable to expect the child to leave the UK”

An applicant being considered under the 10-year parent route must meet the requirements set out at EX.1.(a). They cannot qualify for leave to remain on the parent route on the basis of EX.1.(b).

 

Even if the requirements in EX.1.(a) are met, the applicant will not qualify for leave to remain as a parent under the 10-year parent route if they do not also meet all the other requirements of paragraph R-LTRPT.1.1(a), (b) and (d) of the Immigration Rules, including both the suitability requirements set out at paragraph RLTRPT.1.1.(d)(i) and the eligibility requirements set out at paragraph RLTRPT.1.1(d)(ii).

 

 

What does “reasonable to expect” in EX.1.(a) mean?

 

The requirements in paragraph EX.1.(a) reflect 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, by which we mean their best interests, as reflected in case law, in particular,  ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 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.

 

Where the Home Office decision maker determines under paragraph EX.1.(a)(i) that the applicant has a genuine and subsisting parental relationship with a child under the age of 18 who is in the UK and is a British Citizen or has lived in the UK continuously for at least the seven years immediately preceding the date of application, the decision maker must go on to assess under paragraph EX.1.(a)(ii):

 

  • firstly, whether refusal of the application will mean that the child will have to leave the UK or is likely to have to do so:

  • if so, secondly, whether, taking into account their best interests as a primary consideration, it is reasonable to expect the child to leave the UK. In doing so the decision maker must carefully consider all the information provided by the applicant, together with any other relevant information of which the decision maker is aware

Where the decision maker concludes that refusal of the application will not mean that the child will have to leave the UK or be likely to have to do so, because they will remain in the UK with another parent or carer, paragraph EX.1.(a) will not apply.

 

For paragraph EX.1.(a) to apply, there must be an expectation that refusal will mean that the child will have to leave the UK. Accordingly, where that is not the case, it will not be necessary to consider whether it would be reasonable to expect the child to leave the UK, but it will be necessary to consider the likely impact of the applicant’s removal on the child with reference to the child’s best interests. If it is considered that refusal would lead to unjustifiably harsh consequences for the applicant, the child or their family, leave will fall to be granted on the basis of paragraph GEN.3.2. of Appendix FM.

 

*Detailed clarifications are set out below in relation to the phrase, “reasonable to expect the child to leave the UK”.

 

What is the duration of leave granted?

 

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 not exceeding 30 months as a parent under paragraph DLTRPT.1.2. of Appendix FM, on a 10-year route to settlement.

 

Where a parent is being granted leave on the basis of paragraph D-LTRPT.1.2., any dependent child included in the application who requires leave should be considered under paragraph R-LTRC of Appendix FM. If the child meets the requirements of those Rules, they should be granted leave to remain under paragraph D-LTRC.1.1. of the same duration and subject to the same conditions in respect of recourse to public funds as their parent who is being, or has been, granted leave under the parent rules of Appendix FM.

 

Under paragraph GEN.1.11A, this grant of leave will normally 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, or satisfactory evidence that there are exceptional circumstances relating to the applicant’s financial circumstances which, in the view of the decision maker, requires them not to impose a condition of no recourse to public funds.

 

When will an application for leave to remain as a parent be refused?

 

The application will fall for refusal if the decision maker is not satisfied that all of the requirements of R-LTRPT.1.1.(a), (b) and (d) are met.

 

Where an applicant does not meet those requirements of the parent route under Appendix FM, the decision maker must consider whether the applicant meets the requirements for leave to remain on the basis of private life in the UK.

 

If the applicant does not qualify for leave to remain on the basis of private life and there are no exceptional circumstances as specified above, the application should be refused under paragraph D-LTRPT.1.3. of Appendix FM, and the decision letter should reference this paragraph. It should also set out which of the requirements the applicant has failed to meet and why.

 

The decision letter should be clear about the information considered, including evidence submitted by the applicant, together with any relevant guidance considered as part of the assessment under the Rules, including in relation to what is considered to be in the best interests of the child. The decision letter should make plain that all relevant factors have been considered, in the round.

 

HOW DOES AN APPLICANT MEET THE 10YEAR PRIVATE LIFE ROUTE?

 

The 10-year private life route is available to those who meet the suitability and eligibility requirements of paragraphs 276ADE(1). The requirements to be met under the 10-year private life route are set out in paragraph 276ADE(1) and 276ADE(2) of the Immigration Rules.

 

To qualify for leave, the applicant must meet all these requirements, subject to the exceptions set out in paragraph 276A0 of Part 7.

 

Paragraphs 276ADE(1)-DH of Part 7 of the Immigration Rules provide for leave to remain on a 10-year route to settlement on the basis of private life in the UK. Such applications cannot be made from outside the UK.

 

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.

 

Any applicant who falls for refusal under suitability will not be able to meet the requirement of paragraph 276ADE(1)(i), and will therefore not be granted leave, regardless of whether they meet the requirements of paragraphs 276ADE(1)(ii) to (vi).

 

What are the requirements?

 

To meet the requirements of paragraph 276ADE(1)(iii) to 276ADE(1)(vi), the decision maker must be satisfied that an applicant meets one of the following requirements at the date of application:

 

“ (iii) has lived continuously in the UK for at least 20 years (discounting any period of imprisonment); or

(iv) is under the age of 18 years and has lived continuously in the UK for at least 7 years (discounting any period of imprisonment) and it would not be reasonable to expect the applicant to leave the UK; or

(v) is aged 18 years or above and under 25 years and has spent at least half of his life living continuously in the UK (discounting any period of imprisonment); or

(vi) subject to paragraph 276ADE(2), is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but 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.”

 

Paragraph 276ADE(2) sets out that paragraph 276ADE(1)(vi) does not apply, and may not be relied upon, in circumstances in which it is proposed to return a person to a third country pursuant to Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004.

 

What does “continuous residence” mean?

 

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 to the 1971 Act or 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; or

(iv) 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 continuously 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.”

 

A period of time spent in prison will not break the continuous residence of an applicant applying on the basis of their private life in the UK. Rather, time spent in prison will not be counted towards the period of residence, but time before and after that imprisonment can be aggregated to make up the full amount of time. The decision maker should refer to the following guidance for further information: Long residence

 

 

What evidence is required to demonstrate length of residence ?

 

To demonstrate length of residence in the UK, applicants will need to provide evidence of their residence here.

 

Original, documentary evidence from official or independent sources, for example from a housing trust, local authority, bank, school or doctor, will be given more weight in the decision-making process than unsubstantiated assertions about an applicant’s length of residence.

 

To be satisfied that the UK residence was continuous, the decision maker should normally expect to see evidence to cover every 12-month period of the length of claimed continuous residence, and passports or travel documents to cover the entire period, unless satisfied on the basis of a credible explanation provided as to why this has not been submitted.

 

 

The relevant provisions:

 

20 years’ continuous residence – Paragraph 276ADE(1)(iii) sets out the criteria to be applied, together with the other requirements of the rules, in assessing whether to grant leave to remain to an applicant on the basis of 20 years’ continuous residence. To meet this requirement, an applicant must have lived continuously in the UK for at least 20 years at the date of application, discounting any period of imprisonment.

 

Child under the age of 18 years who has lived continuously in the UK for at least seven years– Paragraph 276ADE(1)(iv) sets out the criteria to be applied, together with the other requirements of the rules, in assessing whether to grant leave to remain to an applicant who is under the age of 18 on the basis of their private life. To meet these requirements, a child under 18 must have lived continuously in the UK for at least seven years at the date of application, discounting any period of imprisonment, and it would not be reasonable to expect that child to leave the UK. Home Office Guidance states that the requirements in paragraph 276ADE(1)(iv) reflect 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, by which we mean their best interests, as reflected in case law, in particular, ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 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 Home Office decision maker must assess under paragraph 276ADE(1)(iv):

 

  • firstly, whether refusal of the application will mean that the child will have to leave the UK or is likely to have to do so:

  • if so, secondly, whether, taking into account their best interests as a primary consideration, it is reasonable to expect the child to leave the UK. In doing so the decision maker must carefully consider all the information provided by the applicant, together with any other relevant information of which the decision maker is aware

 

*Detailed clarifications are set out below in relation to the phrase “reasonable to expect the child to leave the UK”.

 

Aged 18 to 24 – Paragraph 276ADE(1)(iii) sets out the criteria to be applied, together with the other requirements of the Rules, in assessing whether to grant leave to remain to an applicant who is aged between 18 and 24, on the basis of their private life. To meet these requirements, an applicant aged between 18 and 24 must have lived continuously in the UK for at least half their life at the date of application, discounting any period of imprisonment.

 

“very significant obstacles to integration into” the country of return”- 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 that at the date of application there would be very significant obstacles to the applicant’s integration into the country to which they 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 starting point is to assume that the applicant will be able to integrate into their country of proposed 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, not on the decision maker to show that there are not.

 

The decision maker should expect to see original, independent and verifiable documentary evidence of any claims made in this regard, and must place less weight on assertions which are unsubstantiated. Where it is not reasonable to expect corroborating evidence to be provided, the decision maker must consider the credibility of the applicant’s claims.

 

A “very significant obstacle to integration” means something which would prevent or seriously inhibit the applicant from integrating into the country of return. The decision maker is looking for more than the usual obstacles which may arise on relocation (such as the need to learn a new language or obtain employment). They are looking to see whether there are “very significant” obstacles, which is a high threshold. Very significant obstacles will exist where the applicant demonstrates that they would be unable to establish a private life in the country of return, or where establishing a private life in the country of return would entail very serious hardship for the applicant.

 

The assessment of whether there are very significant obstacles to integration will generally consider the proposed country of return, unless there is information to suggest that the applicant might have a choice about where they choose to relocate to, such as where they have a right to reside in a country other than the country of proposed return, or where they have more than one nationality. In that case the decision maker can take account of whether there are very significant obstacles to integration continuing in any of the relevant countries.   Relevant country information should be referred to when assessing whether there are very significant obstacles to integration. The decision maker should consider the specific claim made and the relevant national laws, attitudes and country situation in the relevant country or regions. A very significant obstacle may arise where the applicant would be at a real risk of prosecution or significant harassment or discrimination as a result of their sexual or political orientation or faith, or where their rights and freedoms would otherwise be so severely restricted as to affect their fundamental rights, and therefore their ability to establish a private life in that country.

 

The decision maker should consider whether the applicant has the ability to form an adequate private life by the standards of the country of return – not by UK standards. The decision maker will need to consider whether the applicant will be able to establish a private life in respect of all its essential elements, even if, for example, their job, or their ability to find work, or their network of friends and relationships may be differently constituted in the country of return.

 

The fact the applicant may find life difficult or challenging in the country of return does not mean that they have established that there would be very significant obstacles to integration there. The decision maker must consider all relevant factors in the person’s background and the conditions they are likely to face in the country of return in making their decision as to whether there are very significant obstacles to integration.

 

The decision maker will need to consider any specific obstacles raised by the applicant. They will also need to set these against other factors in order to make an assessment in the individual case. Relevant factors to consider include:

 

  • Cultural background

  • Length of time spent in the country of return

  • Family, friends and social network

  • Faith, political or sexual orientation or sexual identity

 

The nature and extent of the private life that an individual has established in the UK is not relevant when the decision maker is considering whether there are very serious obstacles to integration into the country of return. However, where the applicant falls for refusal under the Rules, this will be relevant when considering whether there are exceptional circumstances which would make refusal unjustifiably harsh for the applicant.

 

What is the duration of leave granted under the private life route?

 

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 normally 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, or satisfactory evidence that there are exceptional circumstances relating to the applicant’s financial circumstances which, in the view of the decision maker, requires them not to impose a condition of no recourse to public funds.

 

 

When will an application for leave to remain be refused?

 

The applicant will fall for refusal of leave to remain on the basis of private life in the UK if the decision maker is not satisfied that all of the requirements of paragraph 276ADE(1) are met.

 

The application should be refused under paragraph 276CE of Part 7 of the Immigration Rules, and the decision letter should reference this paragraph. It should also set out which of the requirements the applicant has failed to meet and why.

 

The decision letter must be clear about the information considered, including evidence submitted by the applicant as well as any relevant country information considered as part of an assessment of the Rules, including in relation to very significant obstacles to integration into the country of return.

 

Where the applicant is a child, the decision letter must be clear about the information that has been considered, and the evidence that has been submitted, when assessing whether it is reasonable to expect a child to leave the UK and what is in the best interests of that child, demonstrating that in the round all relevant factors have been assessed.

 

If the applicant has failed to meet the requirements of the private life rules, but they have a partner or child in the UK, then the decision maker must also consider whether the applicant can meet the requirements for leave to remain on the basis of their family life as a partner or parent on a 10-year route to settlement.

 

Where the application has been considered solely on the basis of private life in the UK under paragraph 276ADE(1)-DH, the decision maker must consider whether there are such exceptional circumstances outside the Immigration Rules.

 

WHEN WILL IT BE REASONABLE TO EXPECT THE RELEVANT CHILD TO LEAVE THE UK?

 

There are factors to be considered when assessing whether it would be reasonable to expect a child to leave the UK when considering:

 

  • Appendix FM; and

  • paragraph 276ADE(1) of Part 7.

This assessment must take into account the child’s best interests as a primary consideration. For guidance on how to consider a child’s best interests, see section 13. Exceptional Circumstances of Appendix FM 1.0a: Family Life (as a Partner or Parent): 5-Year Routes

 

Applicability of the reasonableness test – Paragraph EX.1.(a) and Paragraph 276ADE(1)(iv:

 

Paragraph EX.1.(a) sets out criteria to be applied, in certain circumstances, in assessing whether to grant leave to an applicant who is a parent (or primary carer) on the basis of their family life with a child in the UK:

 

“EX.1. This paragraph applies if

(a) (i) the applicant has a genuine and subsisting parental relationship with a child who-

(aa) is under the age of 18 years

(bb) is in the UK

(cc) is a British Citizen or has lived in the UK continuously for at least the seven years immediately preceding the date of application and (ii) taking into account their best interests as a primary consideration, it would not be reasonable to expect the child to leave the UK

Paragraph 276ADE(1)(iv) sets out the criteria to be applied, in certain circumstances, in assessing whether to grant leave to an applicant who is under the age of 18 on the basis of their private life. It applies where the applicant:

 

“(iv) is under the age of 18 years and has lived continuously in the UK for at least 7 years (discounting any period of imprisonment), and it would not be reasonable to expect the applicant to leave the UK;”

The Home Office decision maker must carefully consider the application to determine whether paragraph EX.1.(a) applies when considering family life and whether the requirements in paragraph 276ADE(1)(iv) are met when considering private life.

The decision maker must carefully consider all the relevant points raised in the application and carefully assess any evidence provided. Decisions must not be taken simply on the basis of the application’s assertions about the child, but rather on the basis of an examination of all the evidence provided. All relevant factors need to be assessed in the round.

 

The requirements in paragraph EX.1.(a) and in paragraph 276ADE(1)(iv) reflect 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, by which is meant their best interests, as reflected in case law, in particular, ZH (Tanzania) [2011] UKSC 4.

 

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). Primary does not mean that the best interests of the child must be considered first, before other factors, though it may be helpful to do so. What matters is that the child’s best interests are fully considered, as a primary consideration, and that this is properly explained in the decision letter.

 

What are the relevant factors for consideration?

 

The decision maker must consider the following factors, where relevant:

 

Is there a genuine and subsisting parental relationship? -Where the application is being considered under paragraph EX.1.(a) in respect of the 10-year partner or parent routes, the decision maker must first decide whether the applicant has a “genuine and subsisting parental relationship” with the child.   The phrase ‘parental relationship’ goes beyond the strict definition of parent set out in paragraph 6 of the Immigration Rules, to encompass situations in which the applicant is playing a genuinely parental role in a child’s life, whether that is recognised as a matter of law or not. The applicant must have a subsisting role in personally providing at least some element of direct parental care to the child. This will be particularly relevant where the child is the child of the applicant’s partner or where the parent is not living with the child. This means that an applicant living with a child of their partner and taking a step-parent role in the child’s life could have a “genuine and subsisting parental relationship” with them, even if they had not formally adopted the child and if the other biological parent played some part in the child’s life. In considering whether the applicant has a “genuine and subsisting parental relationship” the following factors are likely to be relevant:

 

  • Does the applicant have a parental relationship with the child?

  • Is it a genuine and subsisting relationship?

  • Are there factors which might prompt closer scrutiny?

The Home Office, as per their guidance, would not generally expect that more than two people could be in a genuine and subsisting parental relationship with the child. Other people who spend time with or reside with the child in addition to their parents, such as a grandparent, aunt or uncle or other family member, or a close friend of the family, would not generally be considered to have a parental relationship with the child. Where there are two parents, unless evidence is provided to the contrary, it should be assumed that one or both could provide parental care for the child.

 

Is the child a British citizen or have they lived in the UK for a continuous period of at least seven years?- The decision maker should establish from the application or claim the age and nationality of each child affected by the decision. Where the child is a foreign national, the decision maker should establish their immigration history in the UK (for example how long have they lived in the UK and where they lived before). In establishing whether a non-British Citizen child has lived in the UK continuously for at least the seven years immediately preceding the date of application, the decision maker should include time spent in the UK with and without valid leave.   Short periods outside the UK – for example for holidays or family visits – would not count as a break in the continuous period of at least seven years required. However, where a child has spent more than six months out of the UK at any one time, this will normally count as a break in continuous residence unless any exceptional factors apply.

 

Will the consequence of refusal of the application be that the child is required to leave the UK?- The Home Office decision maker must consider whether the effect of refusal of the application would be, or would be likely to be, that the child would have to leave the UK. This will not be the case where, in practice, the child will, or is likely to, continue to live in the UK with another parent or primary carer. This will be likely to be the case where for example:

 

  • the child does not live with the applicant

  • the child’s parents are not living together on a permanent basis because the applicant parent has work or other commitments which require them to live apart from their partner and child

  • the child’s other parent lives in the UK and the applicant parent has been here as a visitor and therefore undertook to leave the UK at the end of their visit as a condition of their visit visa or leave to enter

If the departure of the non-EEA national parent or carer would not result in the child being required to leave the UK, because the child will (or is likely to) remain living here with another parent or primary carer, then the question of whether it is reasonable to expect the child to leave the UK will not arise. In these circumstances, paragraph EX.1.(a) does not apply.

 

However, where there is a genuine and subsisting parental relationship between the applicant and the child, the removal of the applicant may still disrupt their relationship with that child. For that reason, the decision maker will still need to consider whether, in the round, removal of the applicant is appropriate in light of all the circumstances of the case, taking into account the best interests of the child as a primary consideration and the impact on the child of the applicant’s departure from the UK. If it is considered that refusal would lead to unjustifiably harsh consequences for the applicant, the child or their family, leave will fall to be granted on the basis of exceptional circumstances.

 

Would it be reasonable to expect the child to leave the UK? – If the effect of refusal of the application would be, or is likely to be, that the child would have to leave the UK, the decision maker must go on to consider whether it would be reasonable to expect the child to leave the UK.

 

Where the child is not a British citizen and has lived in the UK for seven years or more: The decision maker must consider whether, in the specific circumstances of the case and taking into account their best interests as a primary consideration, it would be reasonable to expect the child to leave the UK. The decision maker must consider the facts relating to that child individually and the facts relating to the family as a whole. The decision maker should engage with any specific issues explicitly raised by the family or by or on behalf of the child (or other children in the family).

 

For guidance on how to consider a child’s best interests, see section 13. Exceptional Circumstances, Appendix FM 1.0a: Family Life (as a Partner or Parent): 5-Year Routes

Relevant factors to consider, as to whether it would be reasonable to expect the child to leave the UK, are likely to include:

 

  • whether the child would be leaving the UK with their parent(s):   it is generally the case that it is in a child’s best interests to remain with their parent(s)

  • the extent of wider family ties in the UK:   the decision maker must consider the extent to which the child is dependent on or requires support from wider family members in the UK in important areas of his or her life

  • whether the child is likely to be able to (re)integrate readily into life in another country, relevant factors include whether the: parent(s), or child, are a citizen of the country and so able to enjoy the full rights of being a citizen in that country; parent(s) or child have lived in or visited the country before for periods of more than a few weeks. The question here is whether, having visited or lived in the country before, the child would be better able to adapt, or the parent(s) would be able to support the child in adapting, to life in the country ; parent(s) or child have existing family or social ties with the country. A person who has extended family or a network of friends in the country should be able to rely on them for support to help (re)integrate there; parent(s) or child have relevant cultural ties with the country. The decision maker must consider any evidence of exposure to, and the level of understanding of, the cultural norms of the country. For example, a period of time spent living amongst a diaspora from the country may give a child an awareness of the culture of the country ; parents or child can speak, read and write in a language of that country, or are likely to achieve this within a reasonable time period. Fluency is not required – an ability to communicate competently with sympathetic interlocutors would normally suffice ; child has attended school in that country

  • any country specific information, including as contained in relevant country information

  • whether removal would give rise to a significant risk to the child’s health. For example, where there is evidence that the child is undergoing a course of treatment for a life threatening or serious illness and treatment will not be available in the country of return. Where the decision maker believes that, based on the specific circumstances raised, refusal would not breach their Article 8 rights, they should refer to the following section on compassionate compelling factors, to consider whether a short period of leave outside the Immigration Rules is appropriate: compassionate factors

  • other specific factors raised by or on behalf of the child. Parents or children may highlight the differences in the quality of education, health and wider public services or in economic or social opportunities between the UK and the country of return and argue that these would work against the best interests of the child if they had to leave the UK and live in that country. These will not normally tip the balance in the applicant’s favour, particularly if the parent(s) or wider family have the means or resources to support the child on return or the skills, education or training to provide for their family on return, or if Assisted Voluntary Return support is available.

 

7year Rule, significant weight to such period of continuous residence and strong reasons required for refusal: The requirement that a non-British citizen child has lived in the UK for a continuous period of at least the seven years immediately preceding the date of application, recognises that over time children start to put down roots and to integrate into life in the UK, to the extent that it may be unreasonable to require the child to leave the UK. Significant weight must be given to such a period of continuous residence. The longer the child has resided in the UK, and the older the age at which they have done so, the more the balance will begin to shift towards it being unreasonable to expect the child to leave the UK, and strong reasons will be required in order to refuse a case where the outcome will be removal of a child with continuous UK residence of seven years or more.

Such strong reasons may arise where, for example, the child will be returning with the family unit to the family’s country of nationality, and the parents have deliberately sought to circumvent immigration control or abuse the immigration process – for example, by entering or remaining in the UK illegally or by using deception in an application for leave to enter or remain. The consideration of the child’s best interests must not be affected by the conduct or immigration history of the parent(s) or primary carer, but these will be relevant to the assessment of the public interest, including in maintaining effective immigration control; whether this outweighs the child’s best interests; and whether, in the round, it is reasonable to expect the child to leave the UK.

In other circumstances, the child’s best interests may outweigh the public interest in maintaining effective immigration control, even where the parents have been guilty of deliberately seeking to circumvent the latter or abuse the immigration process. For example, such a situation may occur when the child has been resident here for seven years or more, and is suffering from a serious medical condition that is being successfully managed in the UK, but could not be so managed in the country of proposed return.

In particular circumstances, it may be appropriate to refuse to grant leave to a parent or primary carer where their conduct gives rise to public interest considerations of such weight as to justify their removal, where the child who has been resident here for seven years or more could remain in the UK with another parent or alternative primary carer, who is a British citizen or settled in the UK or who has been or is being granted leave to remain. The circumstances envisaged include those in which to grant leave could undermine our immigration controls, for example the applicant has committed significant or persistent criminal offences falling below the thresholds for deportation set out in paragraph 398 of the Immigration Rules or has a very poor immigration history, having repeatedly and deliberately breached the Immigration Rules.

In every case, all the circumstances must be carefully considered in the round, with the best interests of the child constituting a primary (but not the only or paramount) consideration.

A recent relevant blog post on the 7year Rule: Children’s residence in the UK: Facets of the 7Year Rule

Where the child is a British citizen – Where the child is a British citizen, it will not be reasonable to expect them to leave the UK with the applicant parent or primary carer facing removal. Accordingly, where this means that the child would have to leave the UK because, in practice, the child will not, or is not likely to, continue to live in the UK with another parent or primary carer, EX.1.(a) is likely to apply.   In particular circumstances, it may be appropriate to refuse to grant leave to a parent or primary carer where their conduct gives rise to public interest considerations of such weight as to justify their removal, where the British citizen child could remain in the UK with another parent or alternative primary carer, who is a British citizen or settled in the UK or who has or is being granted leave to remain. The circumstances envisaged include those in which to grant leave could undermine our immigration controls, for example the applicant has committed significant or persistent criminal offences falling below the thresholds for deportation set out in paragraph 398 of the Immigration Rules or has a very poor immigration history, having repeatedly and deliberately breached the Immigration Rules. In every case, all the circumstances must be carefully considered in the round, with the best interests of the child constituting a primary (but not the only or paramount) consideration.

 

HOW ARE CASES THAT FALL FOR REFUSAL UNDER THE RULES CONSIDERED? 

 

Gen.3.2 of Appendix FM, Exceptional Circumstances and Unjustifiably Harsh Consequences:

 

In respect of leave to remain as a partner, child or parent under Appendix FM, in all cases that otherwise fall for refusal under the Immigration Rules, the Home Office decision maker must consider, under paragraph GEN.3.2. of Appendix FM, whether there are exceptional circumstances which would render refusal of the application a breach of ECHR Article 8 because it would result in unjustifiably harsh consequences for the applicant, their partner, a relevant child or another family member whose Article 8 rights it is evident from the information provided by the applicant would be affected. Where the Rules are otherwise not met but there are such exceptional circumstances, leave to remain should be granted on a 10-year route to settlement. Where there are no such exceptional circumstances, the application should be refused under Appendix FM.

 

Where applicable, leave to remain should be granted in accordance with paragraph GEN.3.2.(3). The applicant will normally be granted leave to remain for a period of 30 months, with scope to qualify for settlement as a partner or parent (or as their child) after 10 years.

 

Under paragraph GEN.1.11A, this grant of leave will normally 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, or satisfactory evidence that there are exceptional circumstances relating to the applicant’s financial circumstances which, in the view of the decision maker, requires them not to impose a condition of no recourse to public funds.

 

Private Life and Exceptional circumstances:

 

For guidance on exceptional circumstances, see section 13 of Appendix FM 1.0a: Family Life (as a Partner or Parent): 5-Year Routes

Where the application has been considered solely on the basis of private life in the UK under paragraph 276ADE(1)-DH, and the applicant does not otherwise meet those Rules, but it is considered that there are exceptional circumstances which would render refusal a breach of ECHR Article 8 (because it would result in unjustifiably harsh consequences for the applicant or their family), leave to remain should be granted on Article 8 grounds outside the Immigration Rules. The applicant will normally be granted leave to remain outside the Immigration Rules for a period of 30 months, with scope to qualify for settlement after 10 years’ continuous lawful residence in the UK.

 

Under paragraph 276A02, the grant of leave to remain outside the Immigration Rules will normally 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, or satisfactory evidence that there are exceptional circumstances relating to the applicant’s financial circumstances which, in the view of the decision maker, requires them not to impose a condition of no recourse to public funds.

 

Compassionate factors:

 

Compassionate factors are compelling compassionate reasons on a basis other than Article 8 family or private life, 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 the possibility of the existence of exceptional circumstances requiring a grant of leave on the basis of Article 8 must be considered in every Appendix FM case otherwise 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 which mean that a refusal of leave to remain would result in unjustifiably harsh consequences for the applicant or their family, but which do not render refusal a breach of Article 8. An example might be where an applicant or family member is suffering from serious ill-health, but which does not in itself render refusal a breach of ECHR Article 3 or Article 8.

 

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

 

If any compassionate factors are raised in the application, the decision maker should consult the following leave outside the Rules guidance: Section 14: leave outside the rules

The decision maker should ensure that where an applicant is granted limited leave to remain on the basis of compassionate factors, the decision letter must clearly show that the grant has been given outside the Immigration Rules on the basis of compassionate factors, and must be clear that the grant is not being made on the basis of their family or private life.

 

It is unlikely that leave will be granted for a period of 30 months, but instead should be a short period of leave to remain granted to reflect the individual circumstances of the application. For example, it may be appropriate to grant a period of 6 weeks’ leave being granted to accommodate completion of final examinations taking place within 4 months, to allow for the examinations and to arrange travel.

 

 

WHEN WILL IT BE APPROPRIATE TO GRANT A LONGER PERIOD OF LEAVE OR AN EARLY GRANT OF SETTLEMENT?

 

Home Office guidance is that settlement in the UK is a privilege, not an automatic entitlement. Unless there are truly exceptional reasons, the expectation is that applicants should serve a probationary period of limited leave before being eligible to apply for indefinite leave to remain (ILR).

 

However, there may be rare cases in which either a longer period of leave or an early grant of ILR is considered appropriate, either because it is clearly in the best interests of a child (and any countervailing factors do not outweigh those best interests), or because there are other particularly exceptional or compelling reasons to grant leave for a longer period (or ILR).

 

If the applicant specifically requests a longer period of leave than 30 months, or ILR, and provides reasons as to why they think a longer period of leave or ILR is appropriate in their case, the decision maker must consider this and set out in any decision letter why a grant of more than 30 months or ILR has not been made.

 

In cases not involving children (as the main applicant or as family members included in the application), there must be sufficient evidence to demonstrate the individual circumstances are not just unusual but can be distinguished to a high degree from other cases to the extent that it is necessary to deviate from a standard grant of 30 months’ leave to remain.

 

In all cases the onus is on the applicant to provide evidence as to why they believe that a longer period of leave (or ILR) is necessary and justified on the basis of particularly exceptional or compelling reasons. If the Home Office decision maker decides that the case is not sufficiently exceptional or compelling, they should grant 30 months’ leave to remain, and explain in the decision letter why this has been granted instead of the length of leave requested.

 

There is discretion to grant a longer period of leave where appropriate. There may be cases where a longer period of leave to remain is considered appropriate, either because it is clearly in the best interests of a child (and any countervailing factors do not outweigh those best interests), or because there are other particularly exceptional or compelling reasons to grant limited leave for a longer period, or to grant ILR.

 

The onus is on the applicant to establish that the child’s best interests would not be met by a grant of 30 months’ leave to remain and that there are compelling reasons that require a different period of leave to be granted. This means that the decision maker should only consider whether to grant a longer period of leave or ILR if (a) the applicant has specifically asked for this, and (b) they have provided their reasons for why they think a longer period of leave or ILR is appropriate.

 

In considering the period of leave to be granted, factors such as the length of residence in the UK, whether the child was born in the UK and strong evidence to suggest that the child’s life would be adversely affected by a grant of limited leave rather than ILR are relevant. The conduct of the child’s parent(s) or primary carer and their immigration history, and the public interest in maintaining fair, consistent and coherent immigration controls, are also all relevant when considering the length of leave to be granted.

 

Where a decision is taken to grant ILR to a child because it is considered to be in their best interests, this does not necessarily mean that the parent(s) or primary carer should be granted ILR in line. It will normally be appropriate to grant a period of limited leave of 30 months to the parent(s) or primary carer, unless they can demonstrate exceptional and compassionate circumstances in their own right that warrant departure from Home Office guidance policy.

 

In all cases, the onus is on the applicant (or their representative) to provide evidence as to why it is in the best interests of the child to be granted a period of leave outside the rules that is longer than 30 months.

 

Where granting a non-standard period of limited leave to the applicant, because it is accepted that there are exceptional reasons for doing so, this leave will have to be granted outside the Immigration Rules as there is no provision within Appendix FM for granting limited leave for a period of more than 30 months. This also applies to ILR, where this is granted outside of a valid ILR application or where the requirements of the Rules are not met. If there are exceptional reasons to grant ILR, this should be granted outside the Rules.

 

DO GENERAL GROUNDS FOR REFUSAL APPLY?

 

Applicants applying for leave to remain on the basis of family life as a partner or parent under Appendix FM to the Immigration Rules are not subject to the General Grounds for Refusal under Part 9 of the Immigration Rules.

 

Applicants applying for leave to remain on the basis of private life under paragraph 276ADE(1) of the Immigration Rules are not subject to the General Grounds for Refusal, except for the provisions in paragraph 322(1):     “322(1) the fact that variation of leave to enter or remain is being sought for a purpose not covered by these Rules.”

 

If the General Grounds for Refusal above apply, the application must be refused.

 

HOW DO THE SUITABLITY REQUIREMENTS APPLY?

 

In considering all applications for leave to remain in the UK on the basis of a person’s family life as a partner or parent, or on the basis of a person’s private life in the UK, the decision maker must consider whether the suitability requirements under paragraphs S-LTR.1.1. to 4.5. of Appendix FM of the Immigration Rules are met.

 

  • Under paragraph S-LTR.1.1., an applicant will be refused leave to remain on the grounds of suitability if any of the paragraphs S-LTR.1.2. to S-LTR.1.8. apply. In considering the suitability criteria under paragraphs S-LTR.1.2. to S-LTR.1.6. of Appendix FM, decision makers must refer to the Criminality Guidance, Criminality: Article 8 ECHR cases. In considering the suitability criteria under paragraph S-LTR.1.8. of Appendix FM, decision makers must refer to the Restricted Leave guidance, Restricted leave.

  • Under paragraph S-LTR.2.1., an applicant will normally be refused leave to remain on the grounds of suitability if any of the paragraphs S-LTR.2.2. to S-LTR.2.5. apply.   In considering the suitability criteria under paragraph S-LTR.2.5. of Appendix FM, decision makers should consider whether the Secretary of State has given notice to the applicant and their partner under section 50(7)(b) of the Immigration Act 2014, that one or both of them have not complied with the investigation of their proposed marriage or civil partnership under the marriage and civil partnership referral and investigation scheme.

  • Under paragraph S-LTR.3.1. – when considering whether the presence of an applicant in the UK is not conducive to the public good, any legal or practical reasons why the applicant cannot presently be removed from the UK must be ignored.

  • Under paragraph S-LTR.4.1., an applicant may be refused leave to remain on the grounds of suitability if any of the paragraphs S-LTR.4.2. to S-LTR.4.5. apply. In considering the suitability criteria under paragraphs S-LTR.1.7, S-LTR.2.2., SLTR.2.4., S-LTR.3.1. and S-LTR.4.2 to S-LTR.4.5. of Appendix FM, decision makers must refer to the General Grounds for Refusal Guidance,   General grounds for refusal (modernised guidance). Under paragraphs S-LTR.2.2. to S-LTR.2.5. where an applicant will normally be refused if they fail to meet these suitability requirements, and under paragraphs SLTR.4.2. to S-LTR. 4.5. where an applicant may be refused if they fail to meet these suitability requirements, the decision maker should look at the nature of the suitability issues being considered in the context of the application as a whole, and decide whether those issues are sufficiently serious to refuse on the basis of suitability (bearing in mind that anything which comes within these criteria should normally or may be refused) or whether there are compelling reasons to decide that the applicant meets the suitability criteria. This will be a case-specific consideration.

If the applicant falls for refusal on the grounds of suitability under any of the requirements in S-LTR, the application will be refused.

 

Criminality: What happens when a Foreign National Criminal applies for further Article 8 leave?

 

Where an application for further leave to remain on the basis of Article 8 is received from a foreign criminal, and that foreign criminal meets all the following:

 

  • they have previously been considered for deportation

  • their deportation was not effected (because Criminal Casework decided that it would breach Article 8, or an appeal against the deportation was allowed)

  • they were granted leave to remain on the basis of Article 8

then the application should not be considered under Appendix FM, but under Part 13 of the Immigration Rules. This is because deportation remains conducive to the public good and in the public interest. The relevant Immigration Rules are set out in paragraph A362 and paragraphs A398 to 399D of Part 13. Such cases should be referred to Criminal Casework Directorate.

 

The decision maker must consider whether criminality which does not fall within paragraphs S-LTR.1.2. to S-LTR.1.4. may fall for refusal under paragraphs SLTR.1.5. to S-LTR.1.6.

 

In doing so, the decision maker should look at whether the applicant’s conduct (including any convictions which do not fall within paragraphs S-LTR.1.3. to SLTR.1.4.) means that their presence in the UK is undesirable or non-conducive to the public good under conduct, character, associations or other reasons. It is possible for an applicant to meet the suitability requirements, even where there is some criminality.

 

 

RIGHTS OF APPEAL

 

From 6 April 2015, under changes made by the Immigration Act 2014, all applications for leave to remain under the 10-year partner, parent and private life routes which are refused will attract a right of appeal on the basis that a human rights claim has been refused, regardless of whether the application was made at a time when the applicant had valid leave to remain. The Home Office decision maker should refer to the following guidance: Immigration Act 2014: appeals

Home Office decision makers should also refer to the Rights of appeal guidance for information on appeal rights.

 

Where a human rights appeal is allowed and the Tribunal have found that the requirements of the relevant Rules are met the decision maker should grant the leave that the appellant qualified for under the Immigration Rules.

 

Where the Tribunal finds the relevant Rules have not been met, but allows the human rights appeal on the basis of exceptional circumstances family life grounds, the appellant should be granted leave in accordance with paragraph GEN 3.2.(3) of Appendix FM for a period of 30 months.

 

Where the Tribunal finds the relevant rules have not been met, but allows the human rights claim purely on the basis of exceptional circumstances private life grounds, the appellant should be granted 30 months leave outside the Immigration Rules.

 

The grant of leave will normally 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, or satisfactory evidence that there are exceptional circumstances relating to the applicant’s financial circumstances which, in the view of the decision maker, requires them not to impose a condition of no recourse to public funds.

 

 

RELEVANT HOME OFFICE GUIDANCE

 

Appendix FM Section 1.0b, family life (as a partner or parent) and private life: 10-year routes

Appendix FM 1.0a: Family Life (as a Partner or Parent): 5-Year Routes

Annex FM 2.0: genuine and subsisting relationship

Annex FM 1.3: recognition of marriage and divorce

Annex FM 2.1: eligibility, registration, dissolution and glossary of terms

Long residence

Section 14: leave outside the rules

General grounds for refusal (modernised guidance)

Criminality: Article 8 ECHR cases

Restricted leave

Immigration Act 2014: appeals

Rights of appeal

Asylum policy instruction: further submissions

 

 

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