Getting to grips with the new Appendix Private Life and Guidance: what you need to know

Posted on June 30, 2022 by alicemuzira Standard Reply

Paragraph 276ADE (1) of Part 7 of the Immigration Rules has been deleted. This Rule provided for the requirements to be met by an applicant for leave to remain on the grounds of private life.

Appendix Private Life and its accompanying new Guidance: Private life: caseworker guidance, came into force on 20 June 2022, replacing the previous Private Life provisions in Part 7 of the Immigration Rules.

Appendix Private Life applies to all applications for permission to stay made on the basis of Private Life in the UK on or after 20 June 2022.

The Private Life Guidance currently provides at page 5, “There is separate guidance for considering applications for settlement under Appendix Private Life”.

In relation to the transitional provisions, where a Home Office decision-maker is considering an application made before 20 June 2022, they are required to do so under the Rules in force on 19 June 2022, taken in combination with the previous casework guidance (Family life as a partner or parent, private life and exceptional circumstances version 16 and Concession to the family Immigration Rules for granting longer periods of leave and early indefinite leave to remain version 2).

APPENDIX PRIVATE LIFE- A SUMMARY

An application under the Private Life Route is required to meet the following requirements by reference to Appendix Private Life and its accompanying Guidance:

Validity
Suitability
Eligibility
Residence
Continuous residence
Qualifying period for settlement applications
English language (settlement applications only)
Knowledge of Life in the UK (settlement applications only)

In essence, the four broad categories that existed previously under the private life routes by reference to now deleted Paragraph 276ADE(1), have been largely carried over to Appendix Private Life( with the introduction of five new categories set out at the end of the list immediately below):

“7year Rule” – permission to stay application, ie limited leave to remain
Young adults who meet the “half -life” test – permission to stay application
20years continuous residence in the UK – permission to stay application
Less than 20years continuous residence in the UK and meeting the “very significant obstacles to re-integration” test – permission to stay application
Application for settlement by a child who was not born in the UK who has or last had permission to stay on the private life route as a child and who has lived in the UK for a continuous qualifying period of 5 years with permission granted pursuant to permitted routes which count towards the qualifying period
Application for settlement by a young adult who was not born in The UK who has or last had permission to stay on the private life route as a young adult who met the half-life test and who has lived in the UK for a continuous qualifying period of 5 years with permission granted pursuant to permitted routes which counts towards the qualifying period
Application for settlement by an applicant who was been born in the UK, is able to provide a full UK birth certificate, and has lived continuously in the UK since their birth for at least 7 years at the date of application and it is not reasonable to expect the applicant to leave the UK.
Application for permission to stay as a dependent child born in the UK to a person on the private life route
Permission to stay where there would be a breach of Article 8 of the ECHR on the basis of private life- i.e where the applicant does not meet some of the suitability requirements or does not meet any of the eligibility requirements for permissions to stay applications

In relation to grants of permission to stay, where it is the applicant’s first grant of permission on the private life route and they are a child (under 18 at the date of application) or a young person (aged between 18-24 at date of application and meet the half of life test), the applicant will be able to choose within the FLR(FP) application whether they should be granted 30 or 60 months leave. All other applicants granted permission on the private life route will be granted leave for 30months.

LONGER PERIODS OF LEAVE OR EARLY ILR – WHAT HAS HAPPENED TO THE CONCESSION INTRODUCED IN OCTOBER 2021?

The Private Life Guidance provides clarifications, stating:

“In October 2021 a concession was introduced to grant young adults longer periods of leave and early indefinite leave to remain on the basis of private life. This concession allowed a person who had arrived in the UK as a child to qualify for settlement after 5 years if they had been granted leave on private life or family grounds and had completed 5 years after the age of 18 with such leave. This concession ended when it was incorporated into the Immigration Rules on 20 June 2022 along with the other changes set out in the Background section above”.

Whilst the Concession enabled grants of ILR to eligible young adults without the need to undertake the Life in the UK test or satisfy the English language requirement, Appendix Private life requires, subject to exemptions, these requirements to be met in relation to settlement applications.

WHAT IS THE PRIVATE LIFE ROUTE?

Private life, as enshrined in Article 8 of the ECHR, is a general right that is applied to cases in an individual way. It states:

8(1) Everyone has the right to respect for his private and family life, his home, and his correspondence.

8(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety, or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The Home Office position is that Article 8 ECHR is a qualified right so as to allow countries to set 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.
It is considered by the Home Office that the Private Life Immigration Rules express a policy on private life that is compatible with Article 8 ECHR on private life. In the event of an adverse decision and an appeal being considered, section 5A of the Nationality Immigration and Asylum Act 2002 is the primary legislation and is considered by the Home Office to be designed to produce in all cases a final result which is compatible with Article 8 ECHR, including in those cases where the requirements of the Immigration Rules may not have been met.

Appendix Private Life itself provides:

Immigration Rules Appendix Private Life

The Private Life route is for a person seeking permission to stay in the UK on the basis they have developed a Private Life in the UK…….The Private Life route is a route to settlement”.

APPLICATION PROCEDURE-VALIDITY REQUIREMENTS FOR PERMISSION TO STAY APPLICATIONS

Validity requirements for permission to stay(leave to remain):

Appendix Private Life states:

“Validity requirements for the Private Life Route

PL 1.1. A person applying for permission to stay on the Private Life route must apply online on the gov.uk website on the specified form: “Application to remain in the UK on the basis of family life or private life”.

PL 1.2. An application for permission to stay on the Private Life route must meet all the following validity requirements:

(a) any fee and Immigration Health Charge must have been paid (unless the applicant has been granted a fee waiver in whole or in part); and

(b) the applicant must have provided any required biometrics; and

(c) the applicant must have provided a passport or other document which satisfactorily establishes their identity and nationality; and

(d) the applicant must be in the UK on the date of application.

PL 1.3. If a private life claim is made under Article 8 of the Human Rights Convention and it is made:

(a) at the same time as a protection claim or further submission in person after a protection claim has been refused; or

(b) when the applicant is in detention (and the claim is submitted to a prison officer, custody officer or a member of Home Office staff at the place of detention); or

(c) during an appeal (subject to the consent of the Secretary of State where applicable), the requirements at PL 1.1. and at PL 1.2. (a) and (c) will be waived.

PL 1.4. An application which does not meet all the validity requirements for the Private Life route is invalid and may be rejected and not considered”.

Information on validity and the process for considering whether to reject an invalid application can be found in the Validation, variation and withdrawal of applications guidance.
If the application does not meet all of the validity requirements set out in paragraphs PL 1.1. and PL 1.2. the application is invalid and may be rejected and not considered. This does not apply when considering certain Article 8 claims that do not require a valid application.
If the application meets all of the validity requirements, or the Home Office have otherwise decided to accept the application as valid, the next stage in consideration will be whether it meets the suitability and eligibility requirements for permission to stay.

SUITABLITY REQUIREMENTS

Applicants seeking permission to stay on private life grounds can be refused for specified suitability reasons. The majority of suitability reasons are set out in Appendix FM because private life and family life both come within the scope of Article 8 ECHR. There is one suitability ground in Part 9 in relation to refusal based on sham marriage.

The Private Life rules state that the applicant must not fall for refusal under the suitability grounds for refusal as set out in the relevant rules in Appendix FM or Part 9. The Home Office will consider the application against those rules and come to a decision on whether it falls to be refused under them.

Before a Home Office decision-maker grants permission to stay on the private life route, they are required to check the applicant is suitable. The suitability requirements for:

applicants are set out in paragraphs PL 2.1. and PL 2.2. of Appendix Private Life
dependent children born in the UK to a person on the Private Life route are set out in paragraphs PL 20.1. and PL 20.2 of Appendix Private Life

To meet paragraph PL 2.1. or paragraph PL 20.1., the applicant must not fall for refusal under any of the grounds for refusal in paragraphs SLTR.1.2. to S-LTR.2.2. and S-LTR.3.1. to S-LTR.4.5. of Appendix FM.

The suitability requirements in Appendix FM fall into 3 categories:

mandatory requirements – the application must be refused if any of paragraphs S-LTR.1.2. to S-LTR.1.8 apply
non-mandatory requirements – the application will normally be refused if paragraph S-LTR.2.2. applies
discretionary suitability grounds – the application may be refused if any of paragraphs S-LTR.4.2. to S-LTR.4.5. apply

To meet paragraph PL 2.2. or PL 20.2., the applicant should not fall for refusal under paragraph 9.6.1. of Part 9: grounds for refusal on the basis of a sham marriage or civil partnership.

When considering the suitability requirements in Appendix FM and Part 9 of the Immigration Rules, the Home Office decision-maker will refer to the following guidance:

S-LTR.1.2.: Criminality in ECHR cases guidance
S-LTR.1.3., S-LTR.1.4.: Criminality guidance
S-LTR.1.5., S-LTR.1.6, S-LTR.1.8.: Suitability: non-conducive grounds for refusal or cancellation of entry clearance or permission guidance
S-LTR.1.7.: Suitability: failure to provide required information, attend interview
S-LTR.2.2., S-LTR.4.2., S-LTR.4.3.: Suitability: false representations
S-LTR.4.4.: Suitability: unpaid litigation costs
S-LTR.4.5.: Suitability: debt to the NHS
Para 9.6.1.: Suitability: sham marriage or civil partnership

If the applicant does not meet all the suitability and eligibility requirements and refusal would not breach Article 8 of the Human Rights Convention, the application on the private life route will be refused.

THE “7YEAR RULE”

Residence requirements and periods of grant of permission to stay- “7 Year Rule”:

Appendix Private Life provides:

“Eligibility requirements on the Private Life Route

Residence requirements for a child on the Private Life route

PL 3.1. Where the applicant is aged under 18 at the date of application the following requirements must be met:

(a) the applicant must have been continuously resident in the UK for at least 7 years; and

(b) the decision maker must be satisfied that it would not be reasonable to expect the applicant to leave the UK”.

………………

“Period and conditions of grant of permission to stay on the Private Life route

PL 10.1. If the applicant is under 18 at the date of application (or was under 18 when first granted permission on the private life route), they will be granted permission to stay for either:

(a) 30 months, where the applicant has applied for a period of 30 months; or

(b) 60 months, where the applicant has applied for a period of 60 months”.

The Private Life Guidance states at pages 9 to 10 and 17 to 18:

A child who has been resident in the UK for 7 years may be considered under the private life rules if applying on their own or if applying as part of a family group. In all family applications, Home Office decision- makers are required to check whether any children included in the application have been resident in the UK for 7 years. If so, the Home Office will firstly need to consider whether the child meets the continuous residence requirements under the private life rules and if so, that it is not reasonable for the child to leave the UK.
If a child meets the requirements of the private life rules and their parent(s) meet the family rules in Appendix FM, the child could also fall for a grant of permission under Appendix FM as a dependent child (if they meet all other requirements). Where a child meets both Appendix Private Life and Appendix FM, they should be granted under Appendix Private Life as this gives the child the most favourable grant of leave and allows a shorter route to settlement. This may on occasion result in a child being granted a different length of leave and different duration to settlement than their parent(s) or other family members.
To meet the residency requirements, the child must be under 18 years old and have been continuously resident in the UK for 7 years on the date of application.
A person applying for an extension of permission on the private life route who was initially granted permission under either Appendix private life or paragraph 276ADE in Part 7 may no longer be under 18 at the date of application for an extension. The applicant will be eligible to extend their permission to stay under PL 10.1 if they were initially granted as a person who was under 18 years old with 7 years residency when first granted permission to stay on the private life route.

The Reasonable test:

In relation to the Reasonable test, the Private life Guidance states:

If the child meets the residence requirements, the decision-maker will consider whether it is reasonable to expect the child to leave the UK. Considered will be all the information provided by the applicant, together with any other relevant information that is available.

As regards assessing whether it is reasonable to expect a child to leave the UK, the Guidance states:

The reasonable assessment must take place in every case where the child has shown continuous residence for 7 years as a child. This is consistent with the approach taken by the Court of Appeal in the case of AB Jamaica – Secretary of State for the Home Department v AB (Jamaica) & Anor [2019] EWCA Civ 661.
The assessment must look at what is reasonable based on the child’s current circumstances. This refers to the present state of affairs and not to the future. The starting point is that the Home Office would not normally expect a qualifying child to leave the UK. The assessment must be specific to the child’s situation.

The Home Office decision-maker must consider:

the age of the child
whether the child has ties to the UK including relationships with other family and friends whose lives are established in the UK
who the child would be expected to leave the UK with – it is normally in the best interests of the child for the family to remain together
whether they have family and friends in their country of return
whether they have ever visited the country of return, for how long and when

A grant of permission to stay to a child on private life grounds does not mean any parental permission to stay will be of the same duration.

Useful caselaw is: KO (Nigeria) and Others v Secretary of State for the Home Department [2018] UKSC 53. In this case the Supreme Court found that ‘reasonableness’ is to be considered in the real-world context in which the child finds themselves. And so, if the circumstances of a child’s parents are that both are going to leave the UK, it is reasonable for the child to be treated as likely to leave with them, unless there is a reasonable basis, supported by evidence, for not taking that view.

Settlement under the “7year Rule”:

Appendix Private Life states as follows in relation to the qualifying period requirement for settlement for an applicant who has had permission to stay on the private life route as a child.

“Qualifying period for settlement on the Private Life route( where the applicant was not born in the UK)

PL 14.1. An applicant who has, or last had, permission to stay on the private life route as a child……. must have lived in the UK for a continuous qualifying period of 5 years with permission as set out in PL 14.3 or 14.4.”

YOUNG ADULTS AND MEETING THE HALF- LIFE TEST

Residence requirements and periods of grant of permission to stay- young adults:

“Eligibility requirements on the Private Life route

Residence requirements for a young adult on the Private Life route (where the applicant arrived in the UK as a child)

PL 4.1. Where the applicant is aged 18 or over and aged under 25 at the date of application and arrived in the UK before the age of 18, the applicant must have spent at least half their life continuously resident in the UK”.

….

Period and conditions of grant of permission to stay on the Private Life route

…

PL 10.2. If the applicant is a young adult who has spent half their life in the UK at the date of application (or was previously granted as a young adult on the private life route), they will be granted permission to stay for either:

(a) 30 months, where the applicant has applied for a period of 30 months; or

(b) 60 months, where the applicant has applied for a period of 60 months”.

The Private life Guidance states at pages 18 to 19 as regards the residence requirements for a young adult:

An applicant aged 18 years or over and under 25 years must have arrived in the UK as a child and have lived continuously in the UK for at least half their life at the date of application.
The rationale for the half of life test is that the greater the proportion of a child or young person’s life has been spent in the UK, the more likely it is that the child or young person can be said to have established their own private life in the UK. Under these rules if the residence requirement is not met as set out, then paragraph PL 8.1. of Appendix Private Life requires an Article 8 consideration to take place.
A person applying for an extension of permission on the private life route who was initially granted permission under either Appendix Private Life or paragraph 276ADE in Part 7 may no longer be in the young person age bracket (for example, they may be 25 or over) at the date of application. The applicant will be eligible to extend their permission to stay under PL 10.2 if they were initially granted as a person who was 18 or over but under 25 years old and met the half of life test when first granted permission to stay on the private life route.
Those individuals who arrived as children and are applying over the age of 18, but do not meet the requirement of having lived in the UK for at least half of their life may still qualify. They may wish to apply as an adult who has lived continuously in the UK for less than 20 years and will need to demonstrate there would be very significant obstacles to their integration into the country where they would have to live if required to leave the UK. They will not be eligible though if they have lodged a protection or asylum claim which has been declared inadmissible.

CHILDREN AND YOUNG ADULTS- CHOICE OF GRANT OF 30 OR 60 MONTHS LEAVE

Private Life Guidance states at pages 32 to 34:

If this is the applicant’s first grant of permission on the private life route and they are a child (under 18 at the date of application) or a young person (aged between 18-24 at date of application and meets the half of life test) the applicant will be able to choose whether they have 30 or 60 months leave( within the FLR(FP) online application form).
An applicant who was initially granted permission as a child or young person either under Appendix Private Life or under paragraphs 276BE(1) or 276BE(2) of Part 7 and is extending their permission to stay will also be able to choose whether they are granted 30 or 60 months leave. As the applicant is extending their leave, they may no longer be a child (for example, they may be over 18) or young person (for example, they may be over 25) at the date of application but they must have met the relevant age criteria when they were first granted leave on the private life route.
The Home Office will check what length of leave the applicant has requested on the application form and that the applicant is entitled to choose their leave.

As regards payment of the Immigration Health Surcharge, the Guidance states:

Children and young people who meet the half of life test have a choice on the duration of leave granted. They can choose either 30 or 60 months leave. The applicant will have self-identified as part of the application process whether they are currently a child or young person or were a child a young person when first granted leave on the basis of their private life. The cost of an application under the private life rules is the same irrespective of the length of permission required but the cost of the immigration health surcharge is different based on the length of leave requested. The applicant will have paid the relevant immigration health surcharge cost at point of application.
Only children and young people are entitled to choose the duration of leave under the private life rules. The Immigration Health Charge portal will allow any applicant in the UK applying on the private or family life routes to select the duration of their leave.
If the applicant has requested 60 months leave but they are not entitled (as they are not a child or young person who met the half of life test or were not a child or young person who met the half of life test when first granted leave on the private life route), they are entitled to a refund of a proportion of the immigration health surcharge. The applicant only needs to pay the Immigration Health Charge for the period of leave they are granted.
If a child or young person has selected that they would like 60 months leave on the application form but has only paid the immigration health surcharge fee for 30months, the Home Office decision-maker will write out to ask the applicant to make an immigration health surcharge top-up payment within 2 weeks in order to be granted 60 months. If they do not make the payment within the 2 weeks, they should be granted 30 months leave.
Family life applicants pay the immigration surcharge (or are given a fee waiver) for 30 months permission to stay. If a child is to be granted leave on the private life route, the decision-maker will write out to inform the applicant that they are eligible for 60 months and ask them for an immigration health surcharge top-up payment in order to be granted 60 months. If they do not make the payment within the 2 weeks, they should be granted 30 months leave.

Settlement for young adults:

Appendix Private Life provides as follows in relation to a young adult meeting the qualifying period requirement for settlement:

“Qualifying period requirement for settlement on the Private Life route(where the applicant was not born in the UK)

PL 14.1. An applicant who has, or last had, permission to stay on the private life route as a ……young adult who met the half-life test under PL 4.1, must have lived in the UK for a continuous qualifying period of 5 years with permission as set out in PL 14.3 or 14.4”.

THE 20YEAR RULE AND LESS THAN 20YEARS RESIDENCE REQUIREMENTS

Residence requirements and periods of grant of permission to stay-20year Rule and less than 20years residence:

Appendix Private Life states:

“Eligibility requirements on the Private Life route

……………

Residence requirements for an adult on the Private Life route (including a young adult who does not qualify under PL 4.1.)

PL 5.1. Where the applicant is aged 18 or over on the date of application:

(a) the applicant must have been continuously resident in the UK for more than 20 years; or

(b) where the applicant has not been continuously resident in the UK for more than 20 years, the decision maker must be satisfied there would be very significant obstacles to the applicant’s integration into the country where they would have to live if required to leave the UK”.

………..

“Period and conditions of grant of permission to stay on the Private Life route

…………

PL 10.3. In all other cases the applicant will be granted 30 months permission to stay”.

Adults granted permission to stay under the private life rules can settle after 10 years continuous residence and permission will initially be granted for 30 months.

The Private Life Guidance provides at pages 20 to 23:
An applicant over 18 years of age, who does not meet the half-life test, must have lived continuously in the UK for at least 20 years at the date of application.
Where an adult applicant has been resident in the UK for less than 20 years (and is not a young adult who meets the half of life test) there must be very significant obstacles to the applicant’s integration into the country where they would have to live if required to leave the UK in order for them to qualify under the private life route.

If the applicant is over 18 but arrived in the UK as a child (and does not meet the half of life in the UK test) then an assessment of whether there are very significant obstacles to integration in the country in which they might have to live if required to leave the UK will be necessary. In these cases, the Home Office will consider if the individual has lived in that country as an adult which will mean spending a period of employment or study in that country, or other activities consistent with living there as an adult.

Settlement: 20year rule or less than 20years residence:

Appendix Private Life states:

“Qualifying period requirement for settlement on the Private Life route (where the applicant was not born in the UK)

……………

PL 14.2. An applicant who is aged 18 or over at the date of application and does not meet the requirement in PL 14.1 must have lived in the UK for a continuous qualifying period of 10 years with permission set out in PL 14.3. or 14.4”.

CONDITIONS ATTACHED TO PERIODS OF PERMISSION TO STAY

Conditions of grant of permission to stay:

Appendix Private Life states:

“Period and conditions of grant of permission to stay on the Private Life route

……………….

“PL 10.5. The grant of permission will be subject to the following conditions:

(a) work (including self-employment and voluntary work) permitted; and

(b) study is permitted, subject to the ATAS condition in Appendix ATAS; and

(c) if the decision maker is satisfied that:

(i) the applicant is destitute, as defined in section 95 of the Immigration and Asylum Act 1999, or is at risk of imminent destitution; or

(ii) there are reasons relating to the welfare of a relevant child which outweigh the considerations for imposing or maintaining the condition (treating the best interests of the relevant child as a primary consideration), the applicant will not be subject to a condition of no access to public funds. If the decision maker is not so satisfied, the applicant will be subject to a condition of no access to public funds; and

(d) if Part 10 of these rules applies, the applicant will be required to register with the police.

PL 10.6. For the purposes of PL 10.5.(c)(ii) ‘relevant child’ means a person who:

(a) is under the age of 18 years at the date of application; and

(b) it is clear from the information provided by the applicant, is a child who would be affected by a decision to impose or maintain the no access to public funds condition.”

Persons granted permission to stay on the basis of private life can take any kind of employment or self-employment. The work can be full-time or part-time, paid, or unpaid and they do not need any additional permission or endorsement from the Home Office to work.
Subject to the ATAS condition below, persons granted permission to stay on the basis of private life are allowed to study in the UK. There is no limit on the number of hours they can study or level of course they can do.
If the person intends to study a discipline listed in Immigration Rules: Appendix ATAS and they are not a national of an exempt country, they must obtain an Academic Technology Approval Scheme (ATAS) clearance certificate from the Counter-Proliferation and Arms Control Centre of the Foreign, Commonwealth and Development Office in relation to this course before beginning their study.
If the applicant has provided the Home Office satisfactory evidence they are destitute or at risk of imminent destitution, or satisfactory evidence that there are reasons relating to the welfare of a relevant child, or satisfactory evidence that there are exceptional circumstances relating to the applicant’s financial circumstances which requires the Home Office decision-maker not to impose a condition of no recourse to public funds, the applicant can be granted access to public funds. Otherwise, permission to stay is granted with no access to public funds.
A person who is granted permission to stay on the basis of private life may be required to register with the police if required under Part 10 of the Immigration Rules – the Police registration guidance provides further information.

CONSIDERATIONS OUTSIDE THE IMMIGRATION RULES- ARTICLE 8 OF THE ECHR ON PRIVATE LIFE

Appendix Private Life states:

“Eligibility requirement for Private Life route relying on Article 8 of the Human Rights Convention

PL 8.1. If the applicant does not meet the suitability requirements (subject to PL 8.2) or does not meet any of the eligibility requirements in PL 3.1., PL 4.1. or PL 5.1. the decision maker must be satisfied that refusal of permission to stay would breach Article 8 of the Human Rights Convention on the basis of private life.

PL 8.2. Where PL 8.1. applies and the applicant falls for refusal under suitability paragraphs S-LTR.1.2., S-LTR.1.3., S-LTR.1.4., S-LTR.1.5., S-LTR.1.6 or S-LTR 1.8. of Appendix FM of these rules the application on the Private Life route will be refused”.

The Private Life Guidance states at pages 27 to 31:

If the applicant does not meet the suitability requirements (see Grounds for refusal – suitability) or the eligibility requirements for a child, young person or adult, the Home Office will consider whether refusal would breach Article 8 (the right to respect for private and family life) of the ECHR on the basis of private life.
In conducting this assessment, regard will be given to all of the information and evidence provided by the applicant. The Home Office are required take into account, as a primary consideration, the best interests of a relevant child.
The Home Office will consider whether refusal would result in a harsh outcome(s) for the applicant, which is not justified by the public interest, including in maintaining effective immigration controls, preventing burdens on the taxpayer, promoting integration, and protecting the public and the rights and freedoms of others.
The impact on the applicant if the application is refused is required to be considered and an assessment made as to whether this produces an unduly harsh outcome when the factors are taken into account. It is expected that an individual applying on their own under the Private Life rules will be assessed on that basis without wishing for the impact on family life or family members to be taken into account.
If family members are included in the application, then the other family members must be taken into account and the application considered so as to produce the same result as if considered under GEN.3.2. of Appendix FM.
Cumulative factors will be considered. Cumulative factors weighing in favour of the applicant should be balanced against cumulative factors weighing in the public interest in deciding whether refusal would breach Article 8 for the applicant.
The Home Office must take into account, as a primary consideration, the best interests of any ‘relevant child’. A ‘relevant child’ is a child in the UK or overseas, who is under the age of 18 years at the date of application, and who it is evident from the information provided by the applicant would be affected by a decision to refuse the application.
The Supreme Court determined, in ZH (Tanzania) [2011] UKSC 4, that the ‘best interests of the child’ broadly means their well-being and that in undertaking a proportionality assessment under Article 8 those best interests must be a primary consideration. However, they are not necessarily determinative, and they can be outweighed by public interest considerations. The Court also noted that while British citizenship is not a ‘trump card’, it is of particular importance in assessing the best interests of a child.
In FZ (Congo) [2013] UKSC 74, the Supreme Court said: “…The best interests of a child are an integral part of the proportionality assessment under Article 8 of the Convention; in making that assessment, the best interests of a child must be a primary consideration, although not always the only primary consideration; and the child’s best interests do not of themselves have the status of paramount consideration…”.
In considering the best interests of a relevant child as a primary consideration within the Article 8 decision-making process, what matters is the substance of the attention given to the overall well-being of the child, not the specific order in which the elements of the consideration take place.
It is also essential that the child is not blamed for any failure by their parent or parents to comply with UK immigration controls. The conduct or immigration history of their non-British citizen parent or parents is relevant to the public interest analysis and must be given due weight in determining the overall proportionality of the decision under ECHR Article 8, but it does not affect the assessment of the child’s best interests or the need for those best interests to be taken into account as a primary consideration in the Article 8 decision.

In relation to the assessment of a child’s best interests, this requires a consideration of all relevant factors in the particular case. The Home Office decision-maker will consider:

the child’s length of residence in the UK
the family circumstances in which the child is living
the child’s relationships with their parent or parents overseas and in the UK
how long the child has been in education and what stage their education has reached
the child’s health
the child’s connection with the country outside the UK in which their parents are, or one of their parents is, currently living or where the child is likely to live if their parents leave the UK
the extent to which the decision will interfere with, or impact on, the child’s family or private life
whether (and, if so, to what extent) the child will have linguistic, medical, or other difficulties in adapting to life in that country
whether there are any factors affecting the child’s well-being which can only be alleviated by the presence of the applicant in the UK what effective and material contribution the applicant’s presence in the UK would make to safeguarding and promoting the child’s well-being. Is this significant in nature?
support during or following a major medical procedure, especially if this is likely to lead to a permanent change in the child’s life.

The Private Life Guidance further provides at page 32:

If the applicant meets the suitability requirements of PL.8.2. and the eligibility requirements on residence, the applicant will be granted permission to stay.
If the applicant does not meet the suitability requirements at 9.6.1 of Part 9 S-LTR 1.7, S-LTR 2.2, S-LTR 3.1 to S-LTR 4.5 of Appendix FM or does not meet the eligibility requirements on residence but refusal would breach Article 8 under PL 8.1, the applicant will be granted permission to stay.
Children and young people being granted permission on the private life route following a private life claim for which no application was required, will be granted leave for 60-months. Children and young people will be on a 5-year route to settlement.

VALIDITY REQUIREMENTS- SETTLEMENT APPLICATIONS

Appendix Private Life states:

“Validity requirements for settlement on the Private Life route

PL 11.1. A person on the Private Life route who is applying for settlement must apply online on the gov.uk website on the specified form as follows:

Adult (aged 18 or over)	Settlement on the private life route
Child (aged under 18)	Settlement as a child (including a child aged over 18 already in the UK as a dependent)

PL 11.2. An application for settlement must meet all the following requirements:

(a) any fee must have been paid; and

(b) the applicant must have provided any required biometrics; and

(c) the applicant must have provided a passport or other travel document which satisfactorily establishes their identity and nationality; and

(d) the applicant must be in the UK on the date of application.

PL 11.3. An applicant must have, or have last been granted, permission on the Private Life route, unless they are a child who was born in the UK.

PL 11.4. An application which does not meet all the validity requirements for settlement on the Private Life route is invalid and may be rejected and not considered”.

ROUTES COUNTING TOWARDS PERIODS OF SETTLEMENT

Routes counting towards the qualifying period of settlement:

Appendix Private Life states:

“PL 14.3. Permission on the following routes (or any combination of those routes) counts towards the qualifying period in PL 14.1. or PL 14.2:

(a) entry clearance or permission granted as a partner or parent under Appendix FM (except for permission as a fiancé(e) or proposed civil partner); or

(b) permission described in the Home Office grant letter as “family permission as a parent” or “family permission as a partner”; or

(c) permission on the private life route under paragraph 276ADE or 276BE(2) before 20 June 2022 or Appendix Private Life; or

(d) entry clearance or permission as a child of a person with limited leave as a partner or parent under Appendix FM; or

(e) permission granted outside the rules as a partner, a parent or child or because of private life on the basis of Article 8 of the Human Rights Convention.

PL 14.4. Permission on any other route that includes rules allowing an applicant to qualify for settlement also counts towards the qualifying period in PL 14.1. or PL 14.2, if the applicant:

(a) did not enter the UK illegally (unless they have permission to stay on the private life route as a child or young adult); and

(b) has had permission either under paragraph 276ADE or 276 BE(2) before 20 June 2022 or Appendix Private Life for at least one year at the date of application”.

7YEARS CONTINUOUS RESIDENCE: SETTLEMENT FOR CHILDREN BORN IN THE UK

Children born in the UK who have accrued 7years continuous residence:

Appendix Private Life states:

“Eligibility requirements for settlement on the Private Life route

Child born in the UK requirements for settlement on the Private life route

PL 13.1. The applicant must have been born in the UK and must provide a full UK birth certificate.

PL 13.2. The applicant must have lived continuously in the UK since their birth and for at least 7 years at the date of application.

PL 13.3. The decision maker must be satisfied that it is not reasonable to expect the applicant to leave the UK”.

A child born in the UK who has been continuously resident in the UK for at least 7 years is eligible to apply for immediate settlement on the basis of private life.

PRIVATE LIFE AND CONTINUOUS RESIDENCE

Continuous residence for limited leave

Appendix Private Life provides:

“Continuous Residence requirements on the Private Life route

PL 7.1. The period of continuous residence at PL 3.1, PL 4.1. or PL 5.1. may include time spent in the UK with or without permission.

PL 7.2. The period of continuous residence at PL 3.1, PL 4.1. or PL 5.1. does not include any period during which the applicant was serving a sentence of imprisonment.

PL 7.3. The period of continuous residence at PL 3.1, PL 4.1. or PL 5.1 is broken (i.e. is no longer continuous) if any of the following apply:

(a) the applicant has been absent from the UK for more than 6 months at any one time; or

(b) the applicant has spent a total of 550 days or more absent from the UK during the period of continuous residence at PL 3.1, PL 4.1 or PL 5.1; or

(c) the applicant has been removed, deported or has left the UK having had an application for permission to enter or stay in the UK refused; or

(d) the applicant left the UK with no reasonable expectation at the time of leaving that they would lawfully be able to return”.

The Private Life Guidance states at pages 25 to 26:

Continuous residence for permission to stay on the private life route means time spent in the UK for an unbroken period and includes time spent in the UK with or without permission.
The Home Office will check when the applicant arrived in the UK and how long they have been living in the UK.
Time spent in prison will not be counted towards the period of continuous residence, but time before and after that imprisonment can be counted. The decision-maker will check to see whether the applicant has a criminal history and, if so whether they have been sentenced to a period of imprisonment.
The applicant is asked to list any absences in the Immigration History section of the application form. The Home Office will check the copy of the applicant’s documentation such as passport pages or travel documents for a record of absences to see if the evidence supports the information on the application form.
If the applicant has not listed all the dates of absence on the form but the passport evidence or other records to demonstrate they were absent, the decision-maker must ask for more information to clarify this discrepancy.
To demonstrate length of residence in the UK, applicants will be asked to provide documentary evidence as part of the application form.
There is no specified evidence to show continuous residence and a Home Office decision-maker cannot refuse an application for a lack of a particular document but must consider where they are overall satisfied that the applicant has been continually resident for the relevant period.
There is also no set number of documents required to show continuous residence and the evidence submitted will depend on the circumstances of the applicant.
The Home Office will consider the information on the application form and other available evidence before deciding whether they are satisfied that the continuous residence requirement is met. Official documentary evidence from official or independent sources, that shows ongoing contact over a period of time, will be given more weight in the decision-making process than evidence of one-off events.

The private life Guidance provides a non-exhaustive list of evidence that may be submitted by an applicant to show continuous residence in the UK. The list is not in order of importance:

tenancy agreement, mortgage agreement, letter from landlord, documents of ownership deeds or letter from housing trust
temporary work contracts or employment letters
letter from a local authority – contact with child or school placements
utility bills – council tax, electricity, gas, water etc
other bills – phone, TV licence, cable etc
other dated UK addressed domestic bills – for example, veterinary bills or home services/repairs
bank statements
study course documents
letters from school or charitable organisations

Although the burden of proof is on the applicant, if they have not yet provided sufficient evidence, the decision-maker is required to consider whether they should ask the applicant for further information, or they can seek to verify evidence before deciding the application.

If evidence is missing or inadequate, but the decision-maker does not need the information because they can get it elsewhere, for example, from a previous application, they do not need to contact the applicant.

If evidence is missing or inadequate but receiving it would make no difference to the decision (for example because they would still be refused for other reasons) the decision-maker does no need to contact the applicant.

If the evidence is missing or inadequate and the Home Office consider receiving it would make a difference to the decision, they should consider asking for further information or making verification checks. For example, the decision-maker may want to ask for evidence in the following situations:

evidence is missing that the Home Office believe the applicant has or could obtain
evidence is inadequate but could be clarified

The decision-maker may decide to ask for further information from the applicant or make verification checks. For more information, the Evidential flexibility guidance applies.

Continuous residence for settlement applications:

Appendix Private Life states:

“Continuous Residence requirement for settlement on the Private Life route

PL 15.1. The applicant must meet the continuous residence requirements as set out in Appendix Continuous Residence for the qualifying period for settlement”.

Appendix Continuous Residence applies only to certain types of applications including Appendix Private Life (settlement only).

Appendix Continuous Residence provides as follows as regards how the continuous residence requirement is met:

“CR 1.1. The continuous residence requirement is met if the applicant has spent the qualifying unbroken continuous residence period required by their route lawfully in the UK”.

Absences from the UK are dealt with between CR 2.1. and CR 2.5 of Appendix Continuous Residence, with CR 2.1. and CR 2.5, stating:

“CR 2.1. To meet the continuous residence requirement the applicant must not have been outside the UK for more than 180 days in any 12-month period (unless CR 2.2. or CR 2.3 applies).

……………….

“CR 2.5 Absences before 20 June 2022 will not be counted when calculating the continuous residence period for settlement applications under Appendix Settlement Family Life if the applicant was subsequently granted permission as a partner or parent under Appendix FM or under paragraph 276ADE or 276BE(2), following those absences”.

CR 4.1. sets out when an applicant’s continuous residence period will be broken.

CR 5.1. provides for when an applicant will not be regarded as lawfully present in the UK under CR 1.1.

CR 6.1. sets out how continuous residence periods in CR 2.1 and CR 2.2. will be calculated.

SETTLEMENT AND THE ENGLISH LANGUAGE REQUIREMENT

Appendix Family life states:

“English language requirement for settlement on the Private Life route

PL 16.1. Unless an exemption applies (for example where the applicant is aged under 18), the applicant must show English language ability on the Common European Page 180 of 202 Framework of Reference for Languages in speaking and listening to at least level B1.

PL 16.2. The applicant must show they meet the English language requirement as specified in Appendix English Language”.

SETTLEMENT AND KNOWLEDGE OF LIFE IN THE UK

Appendix Family life states:

“Knowledge of life in the UK requirement for settlement on the Private Life route

PL17.1. Unless an exemption applies (for example where the applicant is aged under 18), the applicant must meet the Knowledge of Life in the UK requirement as specified in Appendix KOL UK”.

DEPENDANT CHILD BORN IN THE UK TO A PERSON ON THE PRIVATE LIFE ROUTE

Appendix Private Life and the Private Life guidance provide for consideration and assessment of an application for permission to stay as a dependent child born in the UK to a person on the private life route.

The validity requirements are set out in paragraphs PL 19.1. to PL 19.5. of Appendix Private Life.
The suitability requirements for dependent children born in the UK to a person on the Private Life route are set out in paragraphs PL 20.1. and PL 20.2 of Appendix Private Life.
The applicant is required to meet the relationship requirements in paragraphs PL 21.1. and PL 21.2.
If the applicant meets all of the suitability and eligibility requirements the applicant must be granted permission to stay.
The applicant will be granted permission to stay which ends on the same date as whichever of their parents’ permission ends first.
If the applicant’s other parent is a British citizen or a person who has a right to enter or stay in the UK without restriction and is or will be ordinarily resident in the UK, the applicant will be granted permission to stay which ends on the same date as the parent on the Private Life route.
If the applicant does not meet all the suitability and eligibility requirements, the application on the private life route will be refused. The applicant will not be considered against the main private life rules if falling for refusal as a dependent child born in the UK

Zambrano EUSS Primary Carers “New” Guidance: Akinsanya and Velaj

Posted on June 27, 2022 by alicemuzira Standard Reply

“The Home Secretary has carefully considered the Court of Appeal judgment and has decided that she no longer wishes that definition in Appendix EU to reflect the scope of the 2016 Regulations (which have now been revoked) but wishes it to reflect the scope of those who, by the end of the transition period, had an EU law right to reside in the UK as a Zambrano primary carer, in line with the originally stated policy intention. She therefore intends to maintain the requirement in sub-paragraph (b) of the definition that the applicant did not, by the end of the transition period and during the relevant period relied upon, have leave to enter or remain in the UK (unless this was under the EUSS).

This means applications will be considered under the existing Immigration Rules for the EUSS in Appendix EU. Applicants will be eligible for EUSS status in this category where, by the end of the transition period and during the relevant period relied upon, they met the relevant requirements of regulation 16 of the 2016 Regulations and did not have leave to enter or remain in the UK (unless this was under the EUSS).

From today, for a period of six weeks until 25 July 2022, people will be able to apply or re-apply to the EUSS as a ‘person with a Zambrano right to reside’ and be deemed to have reasonable grounds for having missed the deadline to apply, which was 30 June 2021.

Where a person applies after 25 July 2022, they will need to show there are reasonable grounds why they missed the 30 June 2021 deadline. You can find non-exhaustive examples of such grounds at www.gov.uk/settled-status-eu-citizens-families/eligibility”.

Following the Court of Appeal’s judgment in the case of R(Akinsanya) v Secretary of State for the Home Department [2022] EWCA Civ 37, [2022] 2 WLR 681, the Home Office have now reconsidered the EU Settlement Scheme (EUSS) requirements for applicants relying on being a Zambrano primary carer and published their Guidance as above on 13 June 2022.

Akinsanya was previously considered in previous blog posts:

Akinsanya litigation: Court of Appeals decides Zambrano Primary Carers of British citizen children with limited leave are covered by the EEA Regulations – UK Immigration Justice Watch Blog

Primary Carers of British citizens: The Akinsanya litigation and persons with a Zambrano right to reside – UK Immigration Justice Watch Blog

Two weeks prior to publication of the “new” Guidance, the judgement of the Court of Appeal in Velaj v Secretary of State for the Home Department [2022] EWCA Civ 767 (31 May 2022) was notified.

The judgement is considered here: https://ukimmigrationjusticewatch.com/2022/06/27/court-of-appeal-and-reg-165c-akinsanya-does-not-address-question-whether-the-british-citizen-dependant-would-be-unable-to-reside-in-the-uk/

In Velaj, the Court was clear that in Akinsanya, that Appellant’s case on Regulation 16 was entirely focused upon Regulation 16(7). Regulation 16(7) defines an “exempt person” for the purposes of Regulation 16(1)(a). The categories of exempt persons include British Citizens, and persons with Indefinite Leave to Remain (“ILR”). Akinsanya contended that persons with limited leave are not exempt persons and by virtue of paragraph 1(b) are entitled to a derivative right to reside, alongside their leave to remain.

Whether Ms Akinsanya could satisfy the criteria in Regulation 16(5) if she had leave to remain under some other provision of domestic law did not directly arise, and it was not something which the Court considered on her appeal.

As per paragraph 65 of Velaj:

“In Akinsanya this court was not required to consider, and did not consider, the requirements of Regulation 16(5) and how 16(5)(c) might be satisfied in practice by a primary carer who had limited leave to remain. The only issue it had to determine was whether Regulation 16(7) acted as a threshold barrier precluding someone like Ms Akinsanya from asserting that she had a derivative right of residence under Regulation 16(5) (or its predecessor) which had survived the subsequent grant to her of limited leave to remain”.

The Court in Velaj therefore in essence sought to interpret the phrases contained in Regulation 16(5)(c):

“unable to reside in the United Kingdom”
“If the person left the United Kingdom for an indefinite period”

The reasoning in Velaj requires consideration that even if Ms Akinsanya was able to convince the Court of Appeal that she was not an exempt person and so entitled to a derivative right to reside alongside her leave to remain, the question would still remain: assumptions aside and holding leave to remain under the Rules, whether in practice, her British citizen child would be unable to remain in the UK, or an EEA Member State or Switzerland, if she was in fact required to leave the UK for an indefinite period.

The Home Office would have been aware of the effect of Velaj when formulating their Guidance.

As matters stand, does the Secretary of State’s position as reflected in the Guidance of 13 June 2022 mean:

Individuals with leave to remain who applied as a ‘person with a Zambrano right to reside’ from June 2021 onwards are bound to have their applications refused?
There is no point applying as a ‘person with a Zambrano right to reside’ for those with leave to remain but yet to do so?

In light of the “new” Guidance, a person with leave to remain applying as a “person with a Zambrano right to reside” would face difficulty having regard to the Home Office’s main Guidance on Zambrano EUSS Carers:

“Initial eligibility requirements

To be considered eligible for indefinite leave to enter or remain or limited leave to enter or remain under Appendix EU as a ‘person with a Zambrano right to reside’ (or, as the case may be, in relying on past residence as such a person before moving into – and since remaining in – any, or any combination, of the other categories to which the definition of a ‘person who had a derivative or Zambrano right to reside’ refers), the applicant both:

must not be and for the relevant period have not been (or, as the case may be, for the relevant period they were not) an ‘exempt person’ under regulation 16(1)(a) of the EEA Regulations
must not have and for the relevant period must not have had (or, as the case may be, for the relevant period they did not have) leave to enter or remain in the UK granted, unless this was granted under Appendix EU

……………..

Leave to enter or remain in the UK, other than leave granted under Appendix EU

A Zambrano right to reside is only available to a person who has no other lawful basis of stay in the UK as the primary carer of a dependent British citizen, or as a dependant of that primary carer. In the case of Akinsanya v the Secretary of State for the Home Department (SSHD) [2022] EWCA Civ 37 (25 January 2022), the Court of Appeal found that, as a matter of EU law, a Zambrano right to reside does not arise where a person holds leave to remain, but that regulation 16(7) of the EEA Regulations did not exclude holders of limited leave to remain.

…………

To qualify as a ‘person with a Zambrano right to reside’ under Annex 1 to Appendix EU, the applicant must meet the requirements of that definition by the specified date (normally, 2300 GMT on 31 December 2020) and for the relevant period relied upon. This means in particular that they must not have held leave to enter or remain in the UK under another part of the Immigration Rules, or outside the Rules, at the specified date or for that period.

If the applicant does (or for the relevant period did) have leave to enter or remain in the UK, other than leave granted under Appendix EU, then you must, based on the information available to you, consider their eligibility for leave under the other eligibility requirements in rule EU11 (and, where relevant, EU12) and EU14 of Appendix EU, see: EU Settlement Scheme: EU, other EEA and Swiss citizens and their family members.

If they do not meet any other eligibility requirements for leave under the scheme, then you must refuse the application under rule EU6, without going on to consider the other eligibility stages in this guidance”.

Affected individuals whose leave to remain was due to expire prior to receiving decisions on their outstanding Zambrano EUSS application would most likely have timely applied for further leave to remain. Those who are yet to do so, should seriously consider doing so.

Court of Appeal and Reg 16(5)(c): Akinsanya does not address question whether the British Citizen dependant would be unable to reside in the UK

Posted on June 27, 2022 by alicemuzira Standard Reply

The correct interpretation of Regulation 16(5)(c) of the Immigration (European Economic Area) Regulations 2016 (“the 2016 Regulations”), was in issue in Velaj v Secretary of State for the Home Department [2022] EWCA Civ 767 (31 May 2022)

The two judgements of the Court of Appeal in Velaj and R(Akinsanya) v Secretary of State for the Home Department [2022] EWCA Civ 37, [2022] 2 WLR 681 address different issues.

Relevantly, Regulation 16(5)(c), with which Velaj was concerned with, requires regard to be had to whether the relevant dependant British citizen would be unable to reside in the United Kingdom or in another EEA State if the primary carer left the United Kingdom for an indefinite period.

As per paragraph 65 of Velaj:

The Court in Valej therefore in essence sought to interpret the phrases contained in Regulation 16(5)(c):

“unable to reside in the United Kingdom”
“If the person left the United Kingdom for an indefinite period”

Summary Background:

The Appellant, a Kosovan national, subject to deportation proceedings under s.32(5) of the UK Borders Act 2007, had his appeal allowed by the First Tier Tribunal(FTT) on the basis his British son would be unable to reside in the UK or another EEA state if both his parents( the child’s British mother with whom the Appellant was in a relationship with) left the UK for an indefinite period and consequently the Appellant had a derivative right of residence under Regulation 16(5).

On the Secretary of State’s appeal, the Upper Tribunal set aside the decision of the FTT for a material error of law. Having concluded that the Appellant did not have a derivative right of residence, the Upper Tribunal re-made the decision on his appeal against the refusal of his human rights claim, accepted that Mrs Velaj would not go to live in Kosovo and found that it would not be reasonable to expect her to do so. The Upper Tribunal concluded that, although the effects of the Appellant’s deportation would be harsh on the family and indeed distressing, given the gravity of the Appellant’s offending it was nonetheless proportionate. The Appellant’s appeal was dismissed in the Upper Tribunal.

Provisions in issue:

Regulation 16 provides that a person has a derivative right to reside during any period in which the person is not an exempt person and satisfies each of the criteria in one or more of paragraphs (2) to (6).

Relevantly, Regulation 16(5) sets out that the criteria in the paragraph are that –

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

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

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

In Regulation 16(8), a person is the “primary carer” of another person (“AP”) if-

(a) the person is a direct relative or a legal guardian of AP and (b) either –

(i) the person has primary responsibility for AP’s care; or

(ii) shares equally the responsibility for AP’s care with one other person

Regulation 16(5) is concerned with the rights established by the decision of the Grand Chamber of the Court of Justice of the European Union (“CJEU”) in Ruiz Zambrano Ruiz Zambrano v Office national de l’emploi (Case C-34/09) [2012] QB 265, (“Zambrano”) as subsequently re-stated and developed in Chavez-Vilchez v Raad van Bestuur van de Sociale Verzekeringsbank (Case C-133/15) [2018] QB 103 (“Chavez-Vilchez“).

As per Regulation 16(9), “In paragraph … 5(c), if the role of primary carer is shared with another person in accordance with paragraph 8(b)(ii) the words “the person” are to be read as “both primary carers.”

Regulation 16(7) defines an “exempt person” for the purposes of Regulation 16(1)(a). The categories of exempt persons include British Citizens, and persons with Indefinite Leave to Remain (“ILR”).

Regulation 16(12) provides that a derivative right to reside will not arise where decisions are made to remove or exclude the primary carer on grounds of public policy, public security or public health or misuse of rights.

The 2016 Regulations ceased to have effect, save for certain transitional purposes, on 31 December 2020.

Relevant caselaw:

The principles arising in the following caselaw( CJEU and domestic), were considered by the Court in Velaj:

Ruiz Zambrano v Office national de l’emploi(Case C-34/09) [2012] QB 265, (“Zambrano”) :- Zambrano concerned a family living in Belgium: the parents were third country nationals of Colombia. Two of their children were Belgian citizens, and therefore citizens of the EU by virtue of Art 20 of the TFEU. The CJEU held that Art 20 of the TFEU precludes national measures which have the effect of depriving EU citizens of the genuine enjoyment of the substance of the rights conferred upon them by virtue of their status as EU citizens. Unless the father, who was the family breadwinner, enjoyed the right to live and work in Belgium, he and his wife would have to leave the EU, and the children would in practice have to leave with their parents, which would deprive them of the substance of their rights as EU citizens under Articles 20 and 21.
Chavez-Vilchez v Raad van Bestuur van de Sociale Verzekeringsbank (Case C-133/15) [2018] QB 103(“Chavez-Vilchez“):- Chavez-Vilchez concerned EU citizen children who were living with their third country national mothers in the Netherlands. The fathers, from whom the mothers were separated, were Dutch nationals, who provided the children with varying degrees of support. The Dutch authorities had held that the mothers were not entitled to Zambrano rights (including certain state benefits) unless they could show that the fathers were unable to care for the children. The CJEU held that this approach was too simplistic. The fact that the other parent, who was an EU citizen, was willing to assume sole responsibility for the primary care of the EU citizen child was a relevant factor, but it was not sufficient, in and of itself, to conclude that there was not such a degree of dependency between the child and the third country national parent that the child would be compelled to leave the EU if that parent were denied a right of residence. In deciding whether the child would be compelled to leave, account had to be taken of all the specific circumstances, including the age of the child, their physical and emotional development, their emotional ties to each parent and the risks to the child’s well-being that separation from the third country national parent would entail.
Patel v Secretary of State for the Home Department[2020] 1 WLR 228 :- the Court described the reasoning underpinning the Zambrano jurisprudence at [22]: “What lies at the heart of the Zambrano jurisprudence is the requirement that the Union citizen would be compelled to leave Union territory if the TCN [third country national], with whom the Union citizen has a relationship of dependency, is removed.” Lady Arden also observed at [30] that: “The test of compulsion is … a practical test to be applied to the actual facts and not to a theoretical set of facts.”
R(Akinsanya) v Secretary of State for the Home Department[2022] EWCA Civ 37, [2022] 2 WLR 681, (“Akinsanya”) :- The claimant in Akinsanya was a national of Nigeria who was the sole primary carer for a British Citizen child. She was initially issued with a 5 year residence card as a Zambrano carer, but she was subsequently granted 30 months’ leave to remain in the UK under Appendix FM to the Immigration Rules. She then made an application for ILR under the EU Settlement Scheme (“EUSS”). She contended that she met the criteria for ILR set out in Appendix EU to the Immigration Rules because she was a person who had a Zambrano right to reside and she had completed the requisite continuous qualifying period of five years. The Secretary of State argued that Ms Akinsanya did not qualify under the EUSS because Annex 1 to Appendix EU defined “a person with a Zambrano right to reside” as excluding persons who had leave to enter or remain in the UK unless it had been granted under Appendix EU itself. It was contended on Mrs Akinsanya’s behalf that the definition in limb (b) of Annex 1 to Appendix EU did not properly reflect the Zambrano jurisprudence (Ground 1) and/or it did not properly reflect the language of Regulation 16 of the 2016 Regulations (Ground 2). It was argued that there was nothing in Regulation 16 which precluded someone with limited leave to enter or remain in the UK from acquiring (or keeping) derivative rights under that Regulation.As per Underhill LJ in Akinsanya at paragraphs 33 to 36 the issue, was whether the Secretary of State had, in formulating the Annex 1 definition, erred in her understanding of (a) the Zambrano jurisprudence and (b) Regulation 16 of the EEA Regulations, by proceeding on the basis that a Zambrano right did not arise in circumstances where the carer had any form of leave to enter or remain. If the Secretary of State was wrong about that, it was agreed that the impugned decision would have to be quashed.The Court in Akinsanya found for the Secretary of State on the first issue. After analysing the Zambrano jurisprudence, including Iida v Stadt Ulm (Case C-40/11) [2011] Fam 121 and Secretary of State for the Home Department v A (Case C-115/15) [2017] QB 109, Underhill LJ concluded that as a matter of EU law, a Zambrano right is a right of last resort which does not arise if the third-country national carer otherwise enjoys a right under domestic law to reside in the member state in question.However, the conclusion that the definition in Annex 1 to Appendix EU did accurately reflect the Zambrano jurisprudence was not the end of the matter. As Underhill LJ explained at paragraph 57 in Akinsanya, it was unclear whether in framing that definition the Secretary of State intended to restrict rights under the EUSS to people whose rights to reside at the relevant dates directly depended on Zambrano, or whether her intention was to extend those rights to “all those carers whose removal would result in an EU citizen dependant having to leave the UK”. The Court could not, and was not required to, explore the Secretary of State’s purpose in framing the definition because it accepted Ms Akinsanya’s case on the construction of Regulation 16.

The issue in Velaj:

In Velaj, the appeal concerned the correct interpretation of Regulation 16(5)(c) of the 2016 Regulations which defines the circumstances in which a third country national who is the primary carer of a British Citizen has a derivative right to reside in the UK.

The issue which arose in the appeal was whether a person deciding whether the requirements of Regulation 16(5)(c) are fulfilled must consider whether the British Citizen dependant would be unable to reside in the UK on the assumption that the primary carer (or both primary carers, as the case may be) will leave the UK for an indefinite period (irrespective of whether the assumption is correct); or whether the decision-maker must consider what the impact on the British Citizen would be if in fact the primary carer (or both primary carers) would leave the UK for an indefinite period.

The Court of Appeal considered that it was common ground that the Appellant would not qualify for a Zambrano right under the European jurisprudence because as a matter of fact, his son would not be compelled to leave the EU if he were denied a derivative right of residence. He would be able to stay in the UK with his British Citizen mother, who shared primary caring responsibilities with his father and who would not leave the UK if he were returned to Kosovo. It was also common ground that until the amendments were made by the 2018 Regulations, Mr Velaj would not have qualified as a “primary carer” because his wife, being a British Citizen, was an exempt person.

The Appellant’s case turned on the proposition that, on the true construction of Regulation 16(5) of the 2016 Regulations, he acquired rights under domestic law which go further than the minimum rights guaranteed to Zambrano carers under EU law.

Court of Appeal’s considerations and conclusions on the issues:

The Court of Appeal’s considerations included the following:

It was not accepted that Regulation 16(5)(c), as modified by Regulation 16(8) and (9), admits of only one interpretation.
The focus is on whether the British Citizen dependant would be “unable” to remain in the UK “if” something happens – i.e. on what will happen to the child if the primary carer leaves (or both primary carers leave). In that context the word “if” requires the decision maker to consider the position of the child on the basis that something is (actually) going to happen. It does not require that premise to be purely hypothetical, let alone counterfactual. Given that the person asking themselves the question has to decide what in practice would happen to the child if that event occurred, it would make little sense to require them to make an assumption that the event will happen if it plainly will not.
“If the person left the UK for an indefinite period” could either mean “in the event that the person [in fact] left the UK for an indefinite period” or “on the hypothesis that the person will leave the UK for an indefinite period (regardless of whether in fact he would do so)”. The former seemed to the Court to be the more natural interpretation, and carried with it the necessary implication that the postulated event (here, leaving the UK) is realistic, and not just theoretical. A purely hypothetical event could have no impact, in practice, on the ability of the child or other British Citizen dependant to remain in the UK.
It is clear from Chavez-Vilchez and Patel that the question whether the dependant EU citizen would be “unable to reside in the UK” depends on a fact-specific inquiry. It requires a nuanced analysis of inability, and not a simple analysis of a hypothetical question, and that must mean that the decision-maker is looking at what is likely to happen in reality. The “key issue of inability to reside in the United Kingdom requires detailed consideration and a causal link with the departure of both carers”.
That interpretation is also consistent with the stated intention to give effect to Zambrano rights, whereas the rival interpretation would confer a new species of purely domestic derivative rights on someone who would never meet the Zambrano test (or the test in Chen or Ibrahim or Teixeira), in circumstances where the departure of that person from the UK would in practice have no effect at all upon the ability of the British Citizen dependant to remain in the UK. The question whether the legislator is likely to have intended this consequence admits of only one answer in the present case, and that is no.
Requiring the decision maker to assume that both primary carers will leave the UK when one of them will undoubtedly stay behind also precludes the type of nuanced inquiry that was envisaged in Chavez-Vilchez.
Assuming that “required to leave” is given a wider meaning than “legally compelled” in line with Zambrano itself that means “in the event that P will be forced to leave the UK”. The decision-maker is looking at the likely impact upon the child of the primary carer being forced by law or by economic pressure to leave the UK. It presupposes that on the facts of the specific case, this is a realistic hypothesis.
In the Court’s judgment there was nothing in the decision in Akinsanya which precluded the Court in Valej from adopting that construction of Regulation 16(5)(c).

The ratio in Akinsanya- understanding what the case was about:

Velaj is clear:

“59.It is important to understand what that case was. It is set out at [59] of the judgment in Akinsanya:

“the claimant’s case is that limb (b) of the Annex 1 definition is inconsistent with the definition of “exempt person” in regulation 16 (7). Head (iv) of that definition covers a person “who has indefinite leave to enter or remain in the United Kingdom”; but it says nothing about persons with only limited leave. The claimant contends that persons with limited leave are accordingly not exempt persons and by virtue of paragraph 1(b) are entitled to a derivative right to reside, alongside their leave to remain, so long as they satisfy the criteria under one of paragraphs (2)–(6).” [Emphasis added].

60.Thus Ms Akinsanya’s case on Regulation 16 was entirely focused upon Regulation 16(7). She accepted that if she was not exempt, her entitlement to a derivative right to reside would depend on her being able to satisfy the criteria in Regulation 16(5). However the question whether she could or could not do so if she had leave to remain under some other provision of domestic law did not directly arise, and it was not something which this Court considered on her appeal”.

In Velaj, the Court observed that Ms Akinsanya had already satisfied those criteria and obtained her derivative rights of residence as a Zambrano carer before she was granted limited leave to remain. She met the requirements of Regulation 16(5)(c) or its predecessor, Regulation 15A(4A), at the time when she was granted her derivative right of residence. The only question in her case would be whether the grant of limited leave to remain somehow superseded her Zambrano right or meant that she was no longer entitled to it – she was contending that it did not because the two rights could co-exist. It was common ground that if she won on either of her grounds of appeal, the impugned decision to refuse her claim under the EUSS (on the basis that she did not qualify) would have to be reconsidered by the Secretary of State.

As Underhill LJ pointed out at paragraph 60 in Akinsanya, the claimant’s case was clearly right on any natural reading of Regulation 16(7), and it also reflected the understanding of the Home Office at the time when the Amendment Regulations, which introduced the concept of “exempt persons” were made. Guidance issued to UK Border Agency staff in 2012 stated that: “where someone has limited leave (and so is not listed as one of the exempt categories above) and can demonstrate that they meet all other requirements of regulation 15A, then they can acquire a derivative right of residence.”

The focus of the argument thereafter was on whether Regulation 16(7) should be given a construction that was different from its ordinary and natural meaning.

The Court in Velaj set out what the ratio was in Akinsanya:

“64.Whilst accepting the likelihood that in making the relevant parts of Regulation 16 the SSHD intended, in a broad sense, to do no more than to implement the minimum requirements of Zambrano, Underhill LJ said that this begged further questions. The SSHD may have misunderstood what those requirements were, since Iida and A had not been decided when the Amendment Regulations were made in 2012. Alternatively,

“it may be that the Secretary of State took the view that allowing a Zambrano right to reside to those who already had limited leave to remain was more straightforward than having to consider whether particular forms of leave to remain, and in particular the conditions about working to which they might be subject, were fully consistent with Zambrano rights.”

In the end, however, he said that the short answer was that the language of Regulation 16(7)(c)(iv) [which referred specifically to persons with ILR] was simply too clear to allow it to be construed as covering persons with limited leave to remain. That was the ratio of the decision in Akinsanya”.

Velaj emphasises;

“65.In Akinsanya this court was not required to consider, and did not consider, the requirements of Regulation 16(5) and how 16(5)(c) might be satisfied in practice by a primary carer who had limited leave to remain. The only issue it had to determine was whether Regulation 16(7) acted as a threshold barrier precluding someone like Ms Akinsanya from asserting that she had a derivative right of residence under Regulation 16(5) (or its predecessor) which had survived the subsequent grant to her of limited leave to remain.

66.The Court in Akinsanya did not have the benefit of hearing the arguments that were advanced in the present case. Those arguments would have had no bearing on the point of construction of Regulation 16(7) which determined the outcome.…

67.Mr Cox submitted that the criteria for the grant of the derivative right could not be met by a sole primary carer with limited leave to remain if the words “if the person left the UK for an indefinite period” in Regulation 16(5)(c) were not construed in the manner for which he contended, i.e. as a purely hypothetical premise. If a carer already had limited leave to remain they would not, in fact, leave the UK for an indefinite period and the child would not be compelled to leave with them.

68.Although I see the force of that argument, the immigration status of a person with limited leave to remain is precarious; leave is likely to be subject to conditions and it is liable to be withdrawn or truncated. It is possible to conceive of situations in which the conditions attached to a limited leave to remain are such as to make it impossible in practice for the primary carer to remain in the UK and look after the child.

69.I can also envisage a Zambrano carer whose limited leave to remain is due to expire making an application under Regulation 16(5)(c) and succeeding on the basis that they would have to leave the UK as soon as their limited leave expired and the child would have to go with them. In such a case if the decision-maker asks “what will happen to the child in the event that the primary carer leaves the UK for an indefinite period?” they will not be positing a completely unrealistic scenario. In any event, the practical difficulties of someone with limited leave to remain being able to satisfy the requirements of Regulation 16(5)(c) would not be a justification for construing those requirements in a manner which was clearly unintended.

71.Accordingly there is nothing in the decision in Akinsanya that precludes Regulation 16(5)(c) from being construed as I consider it should be construed”.

The appeal in Velaj was dismissed.

Conclusion

The interpretation of Regulation 16(5)(c) in Velaj enabled the Court to reach the conclusion that the appeal could not succeed.

The Court however did not undertake a detailed consideration as to how on the facts the particular appeal failed. Their analysis and conclusions on Regulation 16(5)(c) are however enough to enable a reader to grasp not only that the Appellant failed to meet the requirements of Regulation 16(5)(c) but:

rejected by the Court were submissions on behalf of the Appellant that the decision-maker must determine whether the British citizen would be unable to reside in the UK on the purely hypothetical premise that their primary carer (or both primary carers) will leave the UK for an indefinite period

The Court’s view was that focus is on whether the British Citizen dependant would be “unable” to remain in the UK “if” something happens – i.e. on what will happen to the child if the primary carer leaves (or both primary carers leave). In that context the word “if” requires the decision maker to consider the position of the child on the basis that something is (actually) going to happen. It does not require that premise to be purely hypothetical, let alone counterfactual. The Court stated that given that the person asking themselves the question has to decide what in practice would happen to the child if that event occurred, it would make little sense to require them to make an assumption that the event will happen if it plainly will not.

Ultimately, the assessment of whether the British citizen would be unable to reside in the UK, the EEA if the applicant were required to leave the UK for an indefinite period requires a fact-based enquiry looking at whether, in practice, the British citizen would be unable to remain in the UK, or an EEA Member State or Switzerland, if the applicant (or, as the case may be, both primary carers) were in fact required to leave the UK for an indefinite period. There is no need to make assumptions.

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Monthly Archives: June 2022

Getting to grips with the new Appendix Private Life and Guidance: what you need to know

7YEARS CONTINUOUS RESIDENCE: SETTLEMENT FOR CHILDREN BORN IN THE UK

Children born in the UK who have accrued 7years continuous residence:

Appendix Private Life states:

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Zambrano EUSS Primary Carers “New” Guidance: Akinsanya and Velaj

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Court of Appeal and Reg 16(5)(c): Akinsanya does not address question whether the British Citizen dependant would be unable to reside in the UK

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7YEARS CONTINUOUS RESIDENCE: SETTLEMENT FOR CHILDREN BORN IN THE UK

Children born in the UK who have accrued 7years continuous residence:

Appendix Private Life states:

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