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

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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:

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):

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.

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”.

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:

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:

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:

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:

The Reasonable test:

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

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

The Home Office decision-maker must consider:

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:

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

Private Life Guidance states at pages 32 to 34:

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

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.

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.”

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:

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 Private Life Guidance further provides at page 32:

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:

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:

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:

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.

 

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