Early ILR for young adults: widening of criteria to the Concession to include applicants over 25years and refund of NHS Surcharge if early ILR is granted

As of 20 December 2021, there is a second Version of Concession to the family Immigration Rules for granting longer periods of leave and early indefinite leave to remain.  The Concession was only published for the first time two months ago in October 2021 and has already necessitated a second version due to inclusive amendments needing to be incorporated.

A previous blog post analysed the provisions of the Concession after it was published: Young adults (aged 18 or above and under 25 years) and the new early ILR concession: The good and the not so good | UK Immigration Justice Watch Blog

What was the problem with the published Concession before 20 December 2021?

Up until 20 December 2021, the Concession contained an unfair exclusion from a possible grant of early ILR in relation to persons over 25 years of age who had previously applied under Paragraph 276ADE(1)(v) whilst under the age of 25 and been granted leave on that basis.

There seemed no logic to this exclusion and the referred to above blog post of October 2021 drew attention to the inherent unfairness within the newly published Concession as follows:

“Exclusion from ILR under the Concession of applicants now over 25 initially granted leave as young adults:

For some reason it was thought best to introduce a Concession rather than amend Paragraph 276ADE(1).

There are therefore now two different avenues by which young adults can seek to apply for indefinite leave, ie the 10year route via the Immigration Rules or the 5year route via the new Concession.

There seems to be no definition of “young adults” within Paragraph 6 of the Rules however Paragraph 276ADE(I)(v) itself is stated to apply only to applicants aged 18 years or above and under 25 years who have spent at least half of their life living continuously in the UK.

The Concession also requires that applicants for early ILR be aged 18 years or above and under 25 years of age.

On this basis, the Concession seems to exclude from its ambit, those young adults who previously applied under Paragraph 276ADE(1)(v) whilst under the age of 25 but on applying for further leave are now over this age. Such persons however should, absent adverse factors such as criminality, continue to be granted an extension of leave of 30month under the 10year route having regard to Paragraph 276BE(1), which states:

“Leave to remain on the grounds of private life in the UK

276BE(1). Limited leave to remain on the grounds of private life in the UK may be granted for a period not exceeding 30 months provided that the Secretary of State is satisfied that the requirements in paragraph 276ADE(1) are met or, in respect of the requirements in paragraph 276ADE(1)(iv) and (v), were met in a previous application which led to a grant of limited leave to remain under this sub-paragraph. Such leave shall be given subject to a condition of no recourse to public funds unless the Secretary of State considers that the person should not be subject to such a condition”.

The restriction of the relevant eligible group to those aged between 18 and 24 within the concession is calculatedly deliberate. It excludes from its scope many applicants now aged 25 and over who were initially granted leave to remain based on Paragraph 276ADE(1)(v)”.

What are the amendments?

What the initial version of the Concession provided for between 20 October 2021 and 19 December 2021 is as follows:

To be eligible to be considered under the concession, an applicant must (at the date of application):

  • Be aged 18 years or above and under 25 years of age and has spent at least half of his/her life living continuously in the UK (discounting any period of imprisonment);
  • Have either been born in or entered the UK as a child;
  • Have held five years limited leave; and
  • Be eligible for further leave to remain under paragraph 276ADE(1) of the Immigration Rules and have made an application under those rules”.

After some necessary tinkering with the criteria, the Concession now states from 20 December 2021:

“Criteria for all applications made under the concession

This section sets out the criteria an applicant must meet in order to have their application considered under the early ILR concession.

To be eligible to be considered under this concession an applicant must (at the date of application):

  • Be aged 18 years or above and meet the criteria set out in paragraph 276ADE(1)(v) by having spent at least half of his/her life living continuously in the UK (discounting any period of imprisonment) or has met the criteria set out in paragraph 276ADE(1)(v) in a previous application for leave to remain;
  • Have either been born in or entered the UK as a child;
  • Have held limited leave on the basis of family life or private life, for example under Appendix FM, Part 7 or granted outside the Immigration Rules, for a continuous period of five years, disregarding any period of overstaying where paragraph 39E of the Rules applies; and
  • Be eligible for further leave to remain under paragraph 276ADE(1) of the Immigration Rules (or, having previously qualified under paragraph 276ADE(1)(v), be eligible for further leave to remain under paragraph 276BE) and have made an application under those rules”.

Further amendments: how to apply, fee waivers and refund of NHS surcharge if ILR is granted under the concession

The following is included in the Concession:

“How to apply

This is not an application for ILR, so Applicants should use the private life LTR forms. It is not necessary to use a settlement form in order to be considered under this concession. Applicants may use the free text box on the application form to explain any exceptional circumstances relevant to the application that they wish to be considered.

Applicants will be eligible for a fee waiver under the normal arrangements for fee waivers when applying for leave under the private life rules and will not be subject to the public interest factor of financial independence.

Applicants paying the application fee and immigration health surcharge will be refunded the cost of the immigration health surcharge if ILR is granted under the concession”.

Effect of the amendments and some continuing issues in relation to the Concession

Considering that as a result of the amendments more individuals are now eligible to apply for early ILR under the Concession, this is welcome news.

In brief, the effect of the amendments is to include an applicant over the age of 25 who has held a continuous period of 5years limited leave on the basis of family life or private life, or granted outside the Immigration Rules and met the criteria set out in paragraph 276ADE(1)(v) in a previous application for leave to remain and having previously qualified under paragraph 276ADE(1)(v), is eligible for further leave to remain under paragraph 276BE and has made an application under those rules.

The Concession however comes way too late for some young adults who have already accrued 10years lawful residence in the UK by reference to various forms of leave including previous reliance on Paragraph 276ADE(1)(v).

There are also relevant young adults who may be completing or have completed 10years lawful continuous residence in the UK and are due to apply for indefinite leave to remain in any case under the Immigration Rules. Such applicants due now to apply for ILR, may be perfectly able to speak and write English, but for one reason or the other are having difficulty passing the Life in the UK exam. There is no requirement to take the English language test nor life in the UK exam in order to satisfy the criteria of the Concession. Instead of applying for ILR under the Immigration Rules and have that application refused, depending on the circumstances, there may be detailed consideration given to applying instead for an extension of leave under the private life Rules and requesting a grant of ILR under the concession. After all, the new amendment criteria includes that an applicant have met the criteria set out in paragraph 276ADE(1)(v) in a previous application for leave to remain and have previously qualified under paragraph 276ADE(1)(v). Therefore affected applicants unable to pass the Life in the UK test seem able to resolve these difficulties by applying for an extension also relying on the Concession instead of applying for ILR under the Immigration Rules. If the grant of ILR under the Concession is successful, then a refund will be made of the NHS Surcharge.

Applicants are usually expected to apply for further leave to remain no more than 28 days before their extant leave is due to expire, or no more than 28 days before they have completed 30 months in the UK with such leave. All indicators within the Concession are that an application for leave to remain under the private life Rules needs to be made first online and only then will applicability considerations under the Concession take effect: “…..It is expected that eligible individuals will make an application for leave to remain or further leave to remain under the private life rules. Once received, the application will be considered under those rules but with discretion to grant indefinite leave to remain, as opposed to 30 months temporary leave, to those who have already completed five years leave under the appropriate family or private life rules…….. This is not an application for ILR, so Applicants should use the private life LTR forms. It is not necessary to use a settlement form in order to be considered under this concession. Applicants may use the free text box on the application form to explain any exceptional circumstances relevant to the application that they wish to be considered”.

There are individuals on the 10year route to settlement who currently hold a substantial chunk of their 2and half years leave granted under Paragraph 276ADE(1)(v) but already fulfil the criteria under the concession, are experiencing detriment due to not having ILR, yet seem not able to rely on the Concession until they next submit an extension leave application.  For example, a relevant young adult granted leave to remain for 30months under Paragraph 276ADE(1)(v) from May 2021 seems not able to rely on the concession until late 2023 when they submit their extension of leave application.

If indeed as put forward in the Concession the “ concessions aim to provide a shorter route to settlement (5 years) for those who were born in the UK or may have entered as minors and where it is considered inappropriate to expect them to complete 10-years limited leave before reaching settlement either within or outside of the family and private life rules…… The aim of this concession is to prevent an individual, who is eligible for leave under the private life rules and who has been living here continuously since childhood, having to fulfil a period of leave before settlement that is disproportionate in their circumstances”,  then those applicants who already fulfil the criteria, should be permitted to rely upon the Concession at any point whilst they hold limited leave.

Instead of merely limiting themselves to refunding the NHS Surcharge only if early ILR is granted under the Concession, the Home Office should go further; i.e properly flesh out their currently slim guidance that is within the Concession and formulate an application form to be completed online completely free of charge for applicants seeking to rely on the Concession as soon as they consider they fulfil the criteria of the Concession.

 

 

 

Young adults (aged 18 or above and under 25 years) and the new early ILR concession: The good and the not so good

The Private Life category has never provided for a 5year route to settlement.

However, a freshly published new Concessionary Guidance now does.  It does so by reference to a tightly defined group of eligible persons.

The Guidance.(Concession to the family Immigration Rules for granting longer periods of leave and early indefinite leave to remain Version 1, 21 October 2021), applies to all decisions made from 20 October 2021.

WHAT IS THE 5YEAR OR 10YEAR ROUTE TO SETTLEMENT? 

Appendix FM provides 2 routes to settlement on the basis of family life as a partner or parent. These are a 5-year route and a 10-year route where:

  • the 5-year route is for a partner, parent or child who meets all the suitability and eligibility requirements of the Immigration Rules at every stage.
  • the 10-year route is for a partner, parent or child who meets all family life suitability and certain eligibility requirements and EX.1. applies under Appendix FM.

The route to settlement (5-year or 10-year) an applicant can qualify for, depends on whether all, some or no eligibility requirements are met.

Family life as a Partner:

All eligibility requirements must be met for a partner to qualify for entry clearance or leave to remain on the 5-year route.

Otherwise to qualify for entry clearance or leave to remain on a 10-year route:

  • an applicant must meet all eligibility requirements and rely on other sources of income to meet the financial eligibility requirement because there are exceptional circumstances in accordance with GEN.3.1. of Appendix FM
  • an applicant must meet some and qualify for an exception to the other requirements because EX.1.(a) or (b) of Appendix FM applies
  • an applicant meets some or no eligibility requirements but there are exceptional circumstances in accordance with paragraph GEN.3.2. of Appendix FM

Family life as a Parent:

All eligibility requirements must be met for a parent to qualify for entry clearance or leave to remain on the 5-year route.

Otherwise to qualify for entry clearance or leave to remain on a 10-year route:

  • an applicant must meet all eligibility requirements, and rely on other sources of income to meet the adequate maintenance and accommodation eligibility requirements because there are exceptional circumstances in accordance with GEN.3.1. of Appendix FM
  • an applicant meets some, but qualifies for an exception to certain eligibility requirements because EX.1.(a) of Appendix FM applies
  • an applicant meets some or no eligibility requirements but there are exceptional circumstances in accordance with paragraph GEN.3.2. of Appendix FM

Private life

The 10-year route is for:

  • those who meet all private life suitability and relevant eligibility requirements under Part 7 Paragraph 276ADE(1)
  • those who have exceptional circumstances

PRIVATE LIFE AND YOUNG ADULTS: WHAT IS THE POSITION UNDER THE IMMIGRATION RULES?

Prior to the new Immigration Rules being introduced on 9 July 2012, a published Statement of Intent: Family Migration, June 2012 provided as follows:

“PRIVATE LIFE

58.The Immigration Rules will provide a basis on which a person without family life can remain in the UK through long residence and social integration in the UK, consistent with the approach of Strasbourg and UK case law in this area. Those here lawfully for 10 years will continue to be able to qualify for settlement if they meet the requirements (under paragraph 276B(i)(a) of the Immigration Rules). The current 14 year long residence route to settlement for those in the UK lawfully or unlawfully will be abolished (paragraph 276B(i)(b)).

61.An applicant for leave to remain in the UK on the basis of private life must apply on the correct form and pay the relevant application fee. If they qualify, they will enter a 10 year route to settlement, consisting of four periods of 30 months’ leave to remain, plus a fifth application for indefinite leave to remain, if they qualify for it. Once on the route, applicants will have to make an application, on the correct form and paying the relevant application fee, at each further leave stage and for indefinite leave to remain.

62.To qualify for indefinite leave to remain after 10 years, an applicant must:

  • Have no unspent convictions; and
  • Demonstrate a knowledge of language and life in the UK by passing the Life in the UK test and by presenting a speaking and listening qualification at intermediate level (Common European Framework of Reference level B1) or above”.

Paragraph 276ADE(1) provides the requirements to be met for those applying on the basis of private life:

“Requirements to be met by an applicant for leave to remain on the grounds of private life

276ADE (1). The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant:

(i) does not fall for refusal under any of the grounds in Section S-LTR 1.1 to S-LTR 2.2. and S-LTR.3.1. to S-LTR.4.5. in Appendix FM; and

(ii) has made a valid application for leave to remain on the grounds of private life in the UK; and

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

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

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

(vi) subject to sub-paragraph (2), is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but there would be very significant obstacles to the applicant’s integration into the country to which he would have to go if required to leave the UK”.

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

Young adults(amongst others relying upon paragraph 276ADE(1)):

  • If not eligible for a fee waiver, are expected pay substantial Home Office application fees at each further leave stage(during the course of the 10years) and for indefinite leave to remain.
  • Unless exempt, upon applying for indefinite leave to remain, are required to demonstrate a knowledge of language and life in the UK by passing the Life in the UK test and by presenting a speaking and listening qualification at intermediate level (Common European Framework of Reference level B1) or above.

PRIVATE LIFE AND YOUNG ADULTS: REQUESTS FOR EARLY ILR UNDER THE CONCESSION

The new guidance sets out the early indefinite leave to remain (ILR) concessions made to the Immigration Rules for applicants, in particular young adults (aged 18 or above and under 25 years, as in the Private Life rules), seeking leave based on their private life under Part 7 of the Immigration Rules. These are applicants who may have entered the UK as minors and have since been granted leave on a 10-year route to settlement either within or outside of the family and private life rules.

Special provision has therefore been made for young adults. This is on the basis that:

“…… for some cases the public interest factors which underpin the 10-year settlement policy – namely, the need to serve a longer probationary period before qualifying for settlement, and the principle of encouraging lawful compliance – may be less relevant. In particular, this may be the case for those applicants who were either born in the UK or entered as children (below the age of 18), but are now young adults (aged 18-24), who cannot be considered responsible for any previous non – compliance with immigration laws and are fully integrated into society in the UK. For these individuals it will not usually be proportionate to expect them to have to complete a longer (10-year) route to settlement. Where that is the case, they should be able to settle after 5 years’ continuous leave”.

Eligibility criteria for ILR under the Concession:

To be eligible to be considered under the concession, an applicant must (at the date of application):

  • Be aged 18 years or above and under 25 years of age and has spent at least half of his/her life living continuously in the UK (discounting any period of imprisonment);
  • Have either been born in or entered the UK as a child;
  • Have held five years limited leave; and
  • Be eligible for further leave to remain under paragraph 276ADE(1) of the Immigration Rules and have made an application under those rules.

A balancing of factors and the public interest factors:

Where an applicant meets the above criteria and requests an early grant of ILR the following factors are expected to be considered by the decision-maker:

These include (but are not limited to) the following:

  • the person’s age when they arrived in the UK
  • the length of their residence in the UK (including unlawful residence)
  • the strength of their connections and integration to the UK
  • whether unlawful residence in the past was the result of non-compliance on the part of the applicant or their parent/guardian whilst the applicant was under the age of 18
  • efforts made to engage with the Home Office and regularise status
  • any leave currently held and length of continuous lawful leave
  • any period of any continuous leave held in the past
  • whether (and the extent to which) limited leave to remain will have a detrimental impact on the person’s health or welfare

When considering these factors, decision makers are required to weigh the individual facts of each case against the public interest factors mentioned above (at page 4 of the Guidance): the need for 10-year route applicants to serve a longer probationary period before qualifying for settlement, and the principle of lawful compliance.

For all other applications outside the criteria for longer periods of leave or ILR the existing policy remains in place( the Family Policy, Family life (as a partner or parent), private life and exceptional circumstances) and applicants will be required to demonstrate particularly exceptional or compelling reasons to grant leave for a longer period or ILR.

A CRITIQUE

Some benefits:

It matters very much whether an individual is on a 5year or 10year route to settlement.

On the face of the Concession:

  • there is no need for an individual to submit more than one extension application following the initial 30months leave before becoming eligible for indefinite leave to remain
  • significant savings can be made in relation to providing for Home Office application fees at each stage of application extension. Currently, £2612.20 is required per applicant in relation to an extension of leave application (Home Office application fee and the NHS Surcharge).
  • Applying for naturalisation as a British citizen comes much sooner

It seems the requisite past five years limited leave could have been accrued either as a result of:

  • a grant under Paragraph 27ADE(1): i.e, the 7year Rule( Paragraph 27ADE(1)(iv) or as a young adult(Paragraph 27ADE(1)(v)
  • a grant under the family life provisions in relation to Appendix FM
  • a grant arising from exceptional circumstances

Relevant criteria is required to be met at the date of application:

Individuals seem not eligible under the Concession if an application for indefinite leave to remain is made before having held 5years limited leave –  all the relevant criteria is required to be met at the date of application.

The point at which consideration will be given to eligibility under the Concession seems to be when an application for further leave has been submitted.  Considering that an application for limited leave to remain(£2612.20) costs more than a settlement application( £2,389, excluding the £19.20 for the biometrics enrolment fee), no actual savings are being made.

Children under 18 cannot rely on the early ILR concession:

It is clear that the Concession does not apply to children under the age of 18. The rationale for this is provided for within the Concession Guidance:

“For children aged under 18, the current Private Life rule will still apply as in their case the circumstance of having spent time in the UK as a child but now having to apply as an adult does not apply. In their case the presumption is that they are seeking to live in the UK as dependents of their parents. Similarly, the concession does not apply to children and young adults when the parent, guardian or family member on whom they are dependent is applying, or is eligible to apply, under Appendix FM. They can be expected to continue to be granted leave in line with their parent, guardian or family member on who they are dependent”.

Exclusion from ILR  under the Concession of applicants now over 25 initially granted leave as young adults:

For some reason it was thought best to introduce a Concession rather than amend Paragraph 276ADE(1).

There are therefore now two different avenues by which young adults can seek to apply for indefinite leave, ie the 10year route via the Immigration Rules or the 5year route via the new Concession.

There seems to be no definition of “young adults” within Paragraph 6 of the Rules however Paragraph 276ADE(I)(v) itself is stated to apply only to applicants aged 18 years or above and under 25 years who have spent at least half of their life living continuously in the UK.

The Concession also requires that applicants for early ILR be aged 18 years or above and under 25 years of age.

On this basis, the Concession seems to exclude from its ambit, those young adults who previously applied under Paragraph 276ADE(1)(v) whilst under the age of 25 but on applying for further leave are now over this age. Such persons however should, absent adverse factors such as criminality, continue to be granted an extension of leave of 30month under the 10year route having regard to Paragraph 276BE(1), which states:

“Leave to remain on the grounds of private life in the UK

276BE(1). Limited leave to remain on the grounds of private life in the UK may be granted for a period not exceeding 30 months provided that the Secretary of State is satisfied that the requirements in paragraph 276ADE(1) are met or, in respect of the requirements in paragraph 276ADE(1)(iv) and (v), were met in a previous application which led to a grant of limited leave to remain under this sub-paragraph. Such leave shall be given subject to a condition of no recourse to public funds unless the Secretary of State considers that the person should not be subject to such a condition”.

The restriction of the relevant eligible group to those aged between 18 and 24 within the concession is calculatedly deliberate. It excludes from its scope many applicants now aged 25 and over who were initially granted leave to remain based on Paragraph 276ADE(1)(v).

Grant of ILR will not necessarily follow even if the eligibility criteria is met:

It is not the case that a grant of ILR will follow where the relevant criteria is met and some applicable factors fall in an applicant’s favour.  A balancing exercise will be carried out. The Concession Guidance itself is clear that a period longer than 30months may be granted or ILR:

“Where one or a combination of these factors (at page 6) apply, a decision maker should consider the claim in the round and whether it remains proportionate to expect the applicant to have to complete a longer (10-year) route to settlement. Taken together, these factors may form a particularly exceptional or compelling reason to grant leave for a period longer than 30 months or ILR.

For example, where an applicant can show that they have held 5 years’ limited leave and that previous non-compliance with immigration requirements was not of their own choice or responsibility, because their overstaying was as a child or young adult under the age of 25, it may be appropriate to grant ILR on an exceptional basis”.

On the above basis, an applicant might find they are granted not ILR or 30months but a further extension of 3years leave instead( on top of the minimum 5yers already required to be accrued before the rest of criteria is  met).

Preparing an early request for ILR:

Applications by young adults placing reliance upon Paragraph 276ADE(1)(v), absent adverse history, are fairly straight forward to prepare. An effective easy flowing immigration background as well as sufficient amount of relevant documentary evidence as regards continuity and length of residence will usually suffice. However, applications by young adults requesting early ILR under the Concession will require much more considerable effort and thought.

Having regard to the factors that may be considered, there will be a need to set out within representations a detailed accurate chronology of events as regards the applicant’s past immigration history including that of those the applicant might have previously been dependant upon.

Representations which accompanied past leave applications will need to be in sight.

A Subject Access Request may also need to be made well prior to submission of an application which seeks to place reliance upon the Concession.

A statement prepared for the applicant may need to be provided addressing matters within their knowledge such as whether unlawful residence in the past was the result of non-compliance on their part or their parent/guardian whilst the applicant was under the age of 18, the efforts made to engage with the Home Office and regularise status and whether limited leave to remain will have a detrimental impact on the applicant’s health or welfare.

 

The things that tell you that despite being referred to as “Customers” by the Home Office, Applicants are treated no more than cash machines during the application process

Online, the Home Office refer to applicants as “Customers” and state they provide a “Service” to such applicants during the application process:

“The service we offer

Our service standard processing times for standard applications (6 months or 8 weeks depending on application type) will start when we receive your application.

…………………..

 Our customer charter sets out the service UK Visas and Immigration aims to provide its customers and what it expects from them”www.gov.uk/government/organisations/uk-visas-and-immigration/about-our-services

The published Customer Service Commitment states:

“We aim to be a customer-focused organisation, offering a high-quality service, making it clear what you can expect from us and what your responsibilities are in return.

What you can expect us to do

You can expect us to:

  • make our application processes clear and simple
  • respond to your enquiries in full
  • make a correct decision based on policy and law, understanding your individual circumstances
  • explain our decision clearly and, where appropriate, help you understand what to do next
  • have a simple to use complaints process that puts things right if we make a mistake
  • treat you with respect and be sensitive to your situation
  • keep your personal information, and anything you tell us, safe and secure
  • seek your feedback to continually improve our service”.

www.gov.uk/government/publications/customer-service-commitments-uk-visas-and-immigration/uk-visas-and-immigration-customer-commitments

The above professed commitments are nothing but mere lip service.

In practice, applicants are not treated as actual Customers by the Home Office. Neither is a service provided to them. This is despite an applicant having paid substantial Home Office application fees for the “service”.

Indicators that an applying individual is not a customer of the Home Office and no actual service is being provided to them

That in practice applicants are not “Customers” nor receive a “Service” from the Home Office during the application process, but are a good source for the siphoning of money for the government, is evident from the following:

  • When on top of exorbitant Home Office application fees, Applicants are expected(and have been conditioned) to pay between £71.50 to £138.00 or more to book a standard biometrics enrolment appointment. This is despite the Government publishing on 2 November 2018 in relation to the newly introduced application process, Free appointments will be available for everyone, however, customers will also have the option to purchase added value services such as same day appointments and On Demand services” – gov.uk/government/news/new-uk-visa-and-citizenship-application-services-centres-open
  • When Applicants are fleeced twice for the same process, ie paying twice for enrolling biometrics. A £19.20 biometrics enrolment fee is automatically added to the Home Office application fees payable on submission of the online application form. Subsequently however, for Applicants who have already self-uploaded supportive documents and requiring no other additional add-on services, they expected to pay an additional fee referred to above to book an appointment solely to have biometrics enrolled.
  • When an Applicant pays £2408.20 for an indefinite leave to remain application but is required to pay an additional £1560 for the Immigration Health Surcharge if the indefinite leave to remain application is refused but limited leave to remain is granted instead. For example, an applicant applies in April 2021 for ILR based on the 10year lawful long residence Rule, however in September 2021 that application is refused but since the Applicant has a British citizen child or a child aged at last 7years residing in the UK at the date of application, limited leave to remain is likely to be granted instead. In such circumstances, the Applicant will pay out a total of £3968.20 to the Home Office in the space of 5months. The £1560 is required to be paid to the Home Office within 10working days from the date of the refusal of the ILR application, otherwise the deemed limited leave to remain application will be rejected as invalid. If the application is rejected as invalid the applicant becomes an overstayer.  See Paragraph 276A04 of the Immigration Rules in this regard and the circumstances in which the Home Office will treat the application for indefinite leave to remain as an application for limited leave to remain.
  • When the Home Office deduct a £25 administrative fee from the overall application fees paid when an application is rejected as invalid.
  • When a mere human rights limited leave to remain application (£ 2612.20 total per applicant) costs more to process than a SET(LR) or SET(O) or FLR(DL) indefinite leave to remain application (£2408.20 total per applicant). Why can’t the limited leave application also be charged at £2408.20?
  • When an Applicant completes and submits a private life human rights online application form in less than an hour, requiring only to upload a few documents, yet an eye watering £2612. 20 is required to be paid before the online form can go through for submission.
  • When an Applicant on the 10year route to settlement is expected (based on current fees of £2612.20 per applicant) to pay a minimum of £10,448.80 over the years before they are eligible to apply for indefinite leave to remain. If such an applicant has a dependant Partner and they have children later on requiring to be added on in future extension applications during that 10year period, then a fortune from that household to the Home Office will be payable during the 10years.
  • When in order to receive an expedited decision within 5working days via the ‘priority service’, it costs £500 in addition to the application fee. To receive a decision by the end of the next working day through the ‘super priority service’, it costs £800 in addition to the application fee. The standard Home Office application fees payable are already exorbitant as it is. The higher additional fees that apply to receive a faster decision only go to show that applicants are being treated as ATM’s by the Home Office. For applicants of little means needing to travel urgently, perhaps due to family illness abroad, and only able to make provision for the standard application fees, there is no hope of receiving a faster decision within a week.
  • When from submission of an application to decision-making several many months later, no contact at all is received from the Home Office in the interim period. Such a practice is clearly contrary to the Home Office’s own published guidance: “If there is a problem with your application or if it is complex, we will write to explain why it will not be decided within the normal standard. We will write within the normal processing time for the 8 week standard and within 12 weeks for the 6 month standard. The letter will explain what will happen next”gov.uk/government/organisations/uk-visas-and-immigration/about-our-services
  • When the Home Office Complaints procedure usually yields little that resembles a “customer-focused” approach.
  • When the Home Office play hide and seek with their contact email addresses. A Home Office email address may be in use one week but not the other. When contact is made if a relevant email address is in sight, either no response at all is received from the Home Office or a response is only received following numerous chaser correspondence. So far for human rights applications, the following email addresses have recently in September 2021 yielded some responses from the Home Office: ssc-fhru@homeoffice.gov.uk or fhr14@homeoffice.gov.uk
  • When FLR(FP), FLR(DL), FLR (FM), SET(LR) Applicants (and others) do not receive acknowledgement letters following submission of their applications. Due to the online application process introduced in November 2018, the Home Office no longer issue individual letters acknowledging receipt of pending applications. A consequence of this for Applicants whose employers still insist on seeing a Home Office acknowledgment letter whilst declining to conduct a right to work check on the employee, is termination of employment.   That an appropriately worded acknowledgment letter/email is relevant and important for each applicant is evident from the contents of the email  set out below received from the Home Office on 10 September 2021 after several urgently phrased  chaser emails when an Applicant was about to have her employment terminated:   “Thank you for your email.  We apologise for the late response. Please note that this mailbox is for internal use only. Your email has been forwarded to the relevant department who have advised the following: I can confirm that your client Mrs….. had valid leave in the UK and they made a new application in time. Your client is covered by Section 3C Leave under the same conditions as their previous visa whist your current application is under consideration. Employers can make checks of your immigration status using the link below. https://www.gov.uk/check-job-applicant-right-to-work . Their reference with the UKVI is 1212-0001-000-0000 and 20000000. This relates to the current application that they have open. If you have any further enquiries, please contact our enquiry services. Full details of how to contact UKVI by phone or e-mail, from both inside and outside the UK, can be found at https://www.gov.uk/contact-ukvi-inside-outside-uk.   Any enquiries already made to the above team will be responded to within 15 working days of receipt. Please ensure you follow the correct procedure advised above as further emails to this inbox may not be read and may be deleted without a response”.

Conclusion

When applicants enquire why the Home Office do not respond to correspondence or why the delay in decision making in their case is  growing increasingly alarming despite having paid so much  to the Home Office for processing their applications, it sometimes is tempting to state the obvious: “Unfortunately, you are not and will likely never be treated as a true  “customer” by the Home Office during the processing of your application. Ignore the fact that you have just paid significant fees to the Home Office. The Home Office is a different sort of creature in comparison to other UK government departments. Do not expect a” service” from the Home Office. To the Home Office you are an immigrant (not a customer) who has made an application for leave to remain, to be responded to only when the Home Office are ready to do so or when they can no longer logically sustain the current wall of silence. Be rest assured however that I will diligently continue to pursue the progress of your case including submitting a complaint as agreed with a view to extracting a decision from the Home Office. You may however in the meantime also consider approaching your MP so that they may make separate representations on your behalf in relation to the unreasonable delay in making a decision in your case”.

Reference is  also made to previous blog posts as regards the poor “service” provided by the Home Office, including how immigrants are siphoned dry by substantial Home Office application fees:

 

 

 

 

Court of Appeal: 7year provisions do not create a presumption in favour of a 7year child being granted leave to remain

The Court of Appeal in NA (Bangladesh) & Ors v Secretary of State for the Home Department [2021] EWCA Civ 953 (24 June 2021)  has just decided that the “powerful reasons doctrine”  in R (MA (Pakistan)) v Upper Tribunal (Immigration and Asylum Chamber) [2016] EWCA Civ 705[2016] 1 WLR 5093 no longer remains good law, following KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53[2018] 1 WLR 5273.

Not only that, but NA(Bangladesh) concludes that the seven-year provision does not create a presumption in favour of a seven-year child and their parents, being granted leave to remain.

Summary background

In summary, the appeal in NA(Bangladesh) concerned two Bangladeshi nationals, who having overstayed in the UK since 2005 and 2009 respectively, submitted a leave to remain application based on the 7year Rule in reference to the relevant qualifying child(YS), who was born in the UK on 21 July 2010.

The application of 5 April 2018 was refused on16 August 2018. On appeal, both the First Tier Tribunal and Upper Tribunal dismissed the appeal.

Relevant provisions

The Court of Appeal noted that permission to appeal had been given as it was considered that the appeal raised an issue of general importance about the correct approach to paragraph 276ADE (1) (iv) of the Immigration Rules and section 117B (6) of the Nationality, Immigration and Asylum Act 2002 (which falls under Part 5A of the Act).

YS ‘s claim was based on paragraph 276ADE (1) (iv) of the Rules, under which a person under the age of 18 will be entitled to leave to remain if they have lived continuously in the UK for at least 7 years (discounting any period of imprisonment) and it would not be reasonable to expect them to leave the UK. YS had at the time of the Secretary of State’s decision lived in the UK for more than seven years, and it was his case that it would not be reasonable to expect him to leave the UK.

Section 117B (6) of the 2002 Act states:

“……………………….

In the case of a person who is not liable to deportation, the public interest does not require the person’s removal where—

(a) the person has a genuine and subsisting parental relationship with a qualifying child, and

(b) it would not be reasonable to expect the child to leave the United Kingdom.”

“Qualifying child” is defined by section 117D (1) as:

“a person who is under the age of 18 and who—

(a) is a British citizen, or

(b) has lived in the United Kingdom for a continuous period of seven years or more.”

YS’s parents and his younger sibling, were not entitled to leave to remain under the Rules. The parents relied on section 117B (6).

The Court noted that YS had at all material times been a qualifying child under alternative (b) because he had lived in the UK for more than seven years. There was no dispute that both parents had a genuine and subsisting parental relationship with him, and accordingly that element (a) in subsection (6) was satisfied. The only issue, as regards the parents’ claim, was whether, as required by element (b), it was reasonable to expect YS to leave the UK. If it was not, the parents would be entitled to leave to remain, and YA would have to be given leave to remain with them.

Caselaw considered:

Runa v Secretary of State for the Home Department [2020] EWCA Civ 514[2020] 1 WLR 3760

Secretary of State for the Home Department v AB (Jamaica) [2019] EWCA Civ 661[2019] 1 WLR 4541

KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53[2018] 1 WLR 5273

SA (Bangladesh) v Secretary of State for the Home Department 2017 SLT 1245[2017] ScotCS CSOH 117

R (MA (Pakistan)) v Upper Tribunal (Immigration and Asylum Chamber) [2016] EWCA Civ 705[2016] 1 WLR 5093

PD (Sri Lanka) v Secretary of State for the Home Department [2016] UKUT 108 (IAC)

EV (Philippines) v Secretary of State for the Home Department [2014] EWCA Civ 874

Zoumbas v Secretary of State for the Home Department [2013] UKSC 74[2013] 1 WLR 3690

Appellant’s argument

It was the Appellants’ case that in considering the reasonableness question the Upper Tribunal should have proceeded on the basis that it would not be reasonable for a seven-year child to be expected to leave the United Kingdom unless there were “powerful reasons to the contrary” –, ie “the powerful reasons doctrine”. It was submitted that such an approach was required by the decision of the Court of Appeal in (MA (Pakistan).

It was submitted that it was an error of law for the Upper Tribunal to hold that “the powerful reasons doctrine” did not survive KO (Nigeria).

MA(Pakistan)’s approach to the “reasonableness test”

The Court in NA(Bangladesh) stated that the main issue of principle decided in MA(Pakistan), in which Elias LJ gave judgement, was whether, in considering whether it was reasonable to expect a child to leave the UK when he or she had lived here continuously for seven years, the focus should only be on factors relating to the child (“the narrower approach”) or should incorporate all matters bearing on the public interest, including the conduct and immigration history of the parents (“the wider approach”).

Elias LJ in MA(Pakistan):

  • rejected at paragraph 40 of his judgement a potential argument in favour of the wider approach that since it is generally in a child’s best interests to live as part of the family unit, it will generally be reasonable to expect the child to leave the United Kingdom with the parents if they do not have leave to remain
  • at paragraph 45 of his judgment stated that the then very recent decision in MM (Uganda) v Secretary of State for the Home Department[2016] EWCA Civ 450 constituted binding authority in favour of the wider approach

Having adopted the wider approach, Elias LJ referred to how “the reasonableness test” should be applied:

“46.Even on the approach of the Secretary of State, the fact that a child has been here for seven years must be given significant weight when carrying out the proportionality exercise. Indeed, the Secretary of State published guidance in August 2015 in the form of Immigration Directorate Instructions entitled “Family Life (as a partner or parent) and Private Life: 10 Year Routes” in which it is expressly stated that once the seven years’ residence requirement is satisfied, there need to be “strong reasons” for refusing leave (para. 11.2.4). These instructions were not in force when the cases now subject to appeal were determined, but in my view they merely confirm what is implicit in adopting a policy of this nature. After such a period of time the child will have put down roots and developed social, cultural and educational links in the UK such that it is likely to be highly disruptive if the child is required to leave the UK. That may be less so when the children are very young because the focus of their lives will be on their families, but the disruption becomes more serious as they get older. Moreover, in these cases there must be a very strong expectation that the child’s best interests will be to remain in the UK with his parents as part of a family unit and that must rank as a primary consideration in the proportionality assessment.”

The “powerful reasons doctrine” emanates from Paragraph 48 of Elias LJ’s judgment:

“48. Although this was not in fact a seven year case, on the wider construction of section 117B(6), the same principles would apply in such a case. However, the fact that the child has been in the UK for seven years would need to be given significant weight in the proportionality exercise for two related reasons: first, because of its relevance to determining the nature and strength of the child’s best interests; and second, because it establishes as a starting point that leave should be granted unless there are powerful reasons to the contrary”.

What the Supreme Court in KO(Nigeria) said regarding the approach to the “reasonableness test”

Lord Carnwath delivered the only judgment in KO(Nigeria). He referred to the decision of the Upper Tribunal, in PD (Sri Lanka) and stated at paragraph 10, referring to an Immigration Directorate Instruction:

“The President … cited … relevant guidance contained in an Immigration Directorate Instruction (‘IDI’) of the Home Office entitled ‘Family Life (as a partner or parent) and Private Life: Ten Year Routes’, published in August 2015, extracts of which were appended to the judgment … . They included a section headed ‘Would it be unreasonable to expect a non-British citizen child to leave the UK?’, under which were set out a number of ‘relevant considerations’, such as risk to the child’s health, family ties in the UK and the likelihood of integration into life in another country and:

‘b. Whether the child would be leaving the UK with their parent(s)

It is generally the case that it is in a child’s best interests to remain with their parent(s). Unless special factors apply, it will generally be reasonable to expect a child to leave the UK with their parent(s), particularly if the parent(s) have no right to remain in the UK.’

There was no reference in the list to the criminality or immigration record of the parents as a relevant factor.”

At paragraphs 16 to 17 of his judgement, Lord Carnwath considered the interpretation of paragraph 276ADE (1) (iv) and section 117B (6). The Court in NA(Bangladesh) summarised the effect of Lord Carnwath’s considerations in those paragraphs:

  • the reasonableness question must be approached in the same way under both paragraph 276ADE (1) (iv) and section 117B (6); and
  • agreeing with Elias LJ’s preferred narrower approach in MA(Pakistan)and over-ruling MM (Uganda), both provisions are concerned only with “what is ‘reasonable’ for the child”, and accordingly that the conduct of the parents is irrelevant.

At paragraph 18 of his judgement in KO(Nigeria), Lord Carnwath stated:

“18. On the other hand, as the IDI guidance acknowledges, it seems to me inevitably relevant in both contexts to consider where the parents, apart from the relevant provision, are expected to be, since it will normally be reasonable for the child to be with them. To that extent the record of the parents may become indirectly material, if it leads to their ceasing to have a right to remain here, and having to leave. It is only if, even on that hypothesis, it would not be reasonable for the child to leave that the provision may give the parents a right to remain. The point was well-expressed by Lord Boyd in SA (Bangladesh) v Secretary of State for the Home Department 2017 SLT 1245[2017] ScotCS CSOH 117:

’22. In my opinion before one embarks on an assessment of whether it is reasonable to expect the child to leave the UK one has to address the question, “Why would the child be expected to leave the United Kingdom?” In a case such as this there can only be one answer: “because the parents have no right to remain in the UK”. To approach the question in any other way strips away the context in which the assessment of reasonableness is being made …”

Lord Carnwath went on to state at paragraph 19 in KO(Nigeria):

“He noted (para 21) that Lewison LJ had made a similar point in considering the ‘best interests’ of children in the context of section 55 of the Borders, Citizenship and Immigration Act 2009 in EV (Philippines) v Secretary of State for the Home Department [2014] EWCA Civ 874, para 58:

’58. In my judgment, therefore, the assessment of the best interests of the children must be made on the basis that the facts are as they are in the real world. If one parent has no right to remain, but the other parent does, that is the background against which the assessment is conducted. If neither parent has the right to remain, then that is the background against which the assessment is conducted. Thus the ultimate question will be: is it reasonable to expect the child to follow the parent with no right to remain to the country of origin?’

To the extent that Elias LJ may have suggested otherwise in MA (Pakistan) para 40, I would respectfully disagree. There is nothing in the section to suggest that ‘reasonableness’ is to be considered otherwise than in the real world in which the children find themselves.”

In relation to paragraphs 18 and 19 set out above, the Court in NA(Bangladesh) sought to simply matters and stated that Lord Carnwath’s point was that, notwithstanding his conclusion that the parents’ conduct is not material as such, to the extent that it has led to their not having leave to remain it will still have been “indirectly” material to the reasonableness question because:

  • the reasonableness question has to be considered on the “hypothesis” that the parents will have to leave (that is the so-called “real world” point supported by the citation of SA (Bangladesh)and EV (Philippines), and
  • it will normally be reasonable for a child to be with their parents.

“powerful reasons doctrine” in MA(Pakistan) inconsistent with Lord Carnwath’s reasoning in KO (Nigeria)

In NA(Bangladesh), the Court of Appeal emphasised the following:

  • for the purpose of the specific point that Lord Carnwath was making in paragraph 18, it was only necessary for him to establish that the fact that the parents had no leave to remain couldaffect the outcome, not that it normally would.
  • Although Lord Carnwath’s reasoning is expressed in terms of it normally being reasonable for a child to bewith their parents, not of it normally being reasonable for him or her to leave with them, it was not right to read his judgment in so limited a sense.
  • The upshot is that the effect of Lord Carnwath’s reasoning in KO (Nigeria)is that, even on the narrower approach, in a case falling under the seven-year provision where neither parent has leave to remain the starting-point for a decision-maker is the common-sense proposition that it will be reasonable to expect the qualifying child to leave the UK with their parents. That is necessarily inconsistent with the so-called “powerful reasons doctrine” apparently endorsed by Elias LJ in MA (Pakistan). 

The seven-year provision does not create a presumption in favour of a seven-year child and their parents being granted leave to remain

In dismissing the appeal in NA(Bangladesh), the Court of Appeal concluded:

  • It followed from the analysis provided that the Upper Tribunal Judge was right to reject the submission that “the powerful reasons doctrine” remained good law
  • the seven-year provision does not create a presumption in favour of a seven-year child, and thus their parents, being granted leave to remain.
  • It was important, however, to emphasise that the approach approved by Lord Carnwath in KO (Nigeria)does not provide for a presumption in the opposite direction. It represents no more than a common-sense starting-point, adopted for the reasons given at paragraphs 18 to19 of his judgment.
  • It remains necessary in every case to evaluate all the circumstances in order to establish whether it would be reasonable to expect the child to leave the UK, with his or her parents.
  • If the conclusion of the evaluation is that this would not be reasonable, then the “hypothesis” that the parents will be leaving has to be abandoned and the family as a whole will be entitled to leave to remain: in the case of a qualifying child that will be under paragraph 276ADE (1); in the case of the parents it will be under article 8, applying section 117B (6); and in the case of any non-qualifying child it will derive from the fact that the parents have leave.
  • It was made clear that the Secretary of State acknowledged that in that evaluation the fact that the child had been in the UK for more than seven years would be a material consideration,
  • A question posed on behalf of the Appellant was noted: if the effect of passing the seven-year milestone is not to create some kind of presumption against removal what is its significance?  In response, the Court indicated that it agreed with the Secretary of States submission that the question failed to take into account the fact that the seven-year provision is, as it is put in Runa, a one-way provision which, if it is satisfied, definitively answers the public interest question in favour of the child (and his or her parents) without the need to undertake a general proportionality exercise. That means that other considerations weighing in favour of removal (such as the conduct of the parents) are excluded, as the endorsement in KO (Nigeria)of the “narrower approach” confirms.
  • In relation to the submission that on the facts of the case if the Upper Tribunal Judge had applied the “powerful reasons doctrine” he would have had to allow the appeal, the Court concluded that there was no such doctrine meant that that question does not arise.
  • It was noted that the Appellant’s case in the First-tier Tribunal was that the return of the family to Bangladesh would cause difficulties and disruption for the children, and particularly for YS, who had some medical problems. The Court of Appeal however stated that the conclusion of both tribunals was that those difficulties were not such that it would be unreasonable to expect YS to return or to render his removal otherwise disproportionate.

Conclusion

Many a case has been won relying on the “powerful reasons doctrine” in MA(Pakistan). Unfortunately, that “doctrine” has now been laid to rest.

Unless there is more to the facts, the parents in NA(Bangladesh) seem to have remained in the UK without leave for a considerable number of years, during which time it seems, no applications to regularise their status were made to the Home Office until after YS was well over the age of 7years.  Many applicants relying on the 7year rule will similarly have remained under the “radar” for many years. Unless able to establish that it would be reasonable to expect the relevant child to leave the UK, NA(Bangladesh)’s restatement of principles relevant to the “reasonableness test” has potentially devastating consequences.

The Court of Appeal did note that on 11 November 2020 YS became a British citizen, but stated that was common ground that that fact was immaterial since it post-dated the decision which was the subject of the original appeal.

If YS’s parents were to submit a further application relying on the fact that they now have a British citizen child, would that application have a better chance of success? In such circumstances, the application itself to the Home Office would no longer include reliance on the 7year rule, but on exceptional circumstances(section 117B(6) would however kick in again at appeal if the application is refused, with the result that the same conclusions could be reached even if reliance is being placed upon family life with a British child).

On raising exceptional circumstances, the provisions of Appendix FM would be relevant:

“GEN.3.2.(1) Subject to sub-paragraph (4), where an application for entry clearance or leave to enter or remain made under this Appendix, or an application for leave to remain which has otherwise been considered under this Appendix, does not otherwise meet the requirements of this Appendix or Part 9 of the Rules, the decision-maker must consider whether the circumstances in sub-paragraph (2) apply.

(2) Where sub-paragraph (1) above applies, the decision-maker must consider, on the basis of the information provided by the applicant, whether there are exceptional circumstances which would render refusal of entry clearance, or leave to enter or remain, a breach of Article 8 of the European Convention on Human Rights, because such refusal would result in unjustifiably harsh consequences for the applicant, their partner, a relevant child or another family member whose Article 8 rights it is evident from that information would be affected by a decision to refuse the application”.

Family Policy, Family life (as a partner or parent), private life and exceptional circumstances, relevantly defines the meaning of “relevant child”, “exceptional circumstances” and ‘unjustifiably harsh consequences’.

Alternatively, as YS is a British citizen child, an application may be made under the EU Settlement Scheme by the parents as a “person with a Zambrano right to reside”.

Overstaying visitor parents: Requirements of Adult Dependent Rules a powerful factor in Article 8 proportionality assessment

“When people from overseas choose to make a life in the UK they are not entitled to expect that they will later be able to bring their parents to join them. The Government has decided as a matter of considered policy that that right should generally be restricted to cases satisfying the strict criteria set out in the sections denoted EC-DR and ILR-DR under Appendix FM to the Immigration Rules; and in Britcits this Court has found that policy to be legitimate. The Appellant did not apply under those rules, no doubt because she could not on the evidence have satisfied their requirements. That is not in itself conclusive that the refusal of leave to remain would be proportionate; but, as Carr LJ explains, it is highly material, and like her I can see no error of law in the Judge’s evaluation.

I should say that the Appellant has not assisted her cause by overstaying for almost two years between the expiry of her visitor’s visa in July 2015 and her making of the present application….”,  as per Lord Justice Underhill Mobeen v Secretary of State for the Home Department [2021] EWCA Civ 886 (14 June 2021)

On the basis of Mobeen v Secretary of State for the Home Department [2021] EWCA Civ 886 (14 June 2021), parents  or other dependant adult relatives viewed as  having sought to circumvent the  demanding entry clearance Adult Dependent Relative route by coming as  visitors to the UK, overstaying and then applying for leave to remain outside the Immigration Rules, are unlikely to succeed in their Article 8 family life claims.

 

BACKGROUND

The appellant, a 66-year-old widow of Pakistan nationality, had been a frequent visitor to the UK from September 2007 and last entered the UK in June 2014 on a visitor’s visa.

She had a son and two daughters, in the UK all of whom are residents in the UK and are British citizen.  The appellant visited her children in the UK, spending only 12 months in Pakistan after 2011 and the rest of her time in the UK.

On 14 July 2017 the appellant made an application for leave to remain on the basis of her family and private life in the UK on the basis that it was unreasonable to expect her to leave the UK on account of her circumstances. She was living with her son and financially dependent on her children, in particular her son. The children were all financially independent and supported her with private healthcare insurance and accommodation in the UK. She would not be relying on public funds or NHS services. Her daughter, was also very dependent on the appellant for childcare for her young son, the appellant’s grandson. The appellant suffered from arthritis and high blood pressure. Her application was refused by decision dated 11 January 2018.

Both the First Tier Tribunal and Upper Tribunal dismissed her appeal against the refusal decision.

 

COURT OF APPEAL’S SUMMARY OF PRINCIPLES RELATING TO FAMILY LIFE IN THE CASE OF ADULTS

As regards the Court of Appeal’s summary of the relevant principles relating to family life in the case of adults, the following flows from their judgement:

“43.As set out above, the appellant’s application for leave so far as relevant to this appeal was not made under either of the above routes, but rather outside the Immigration Rules on the basis of Article 8 which provides:

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

  1. There shall be no interference by a public authority with the exercise of this right except such as 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.”

44.The relevant principles relating to family life in the case of adults have been explored in a line of well-known authorities including Kugathas; Singh v ECO New Delhi [2004] EWCA Civ 1075 (“Singh 1”); ZB (Pakistan) v SSHD [2009] EWCA Civ 834 (“ZB”); Singh v SSHD [2015] EWCA Civ 630 (“Singh 2”); Britcits; AU v SSHD [2020] EWCA Civ 338 (“AU”). The position can be summarised as follows.

45.Whether or not family life exists is a fact-sensitive enquiry which requires a careful assessment of all the relevant facts in the round. Thus it is important not to be overly prescriptive as to what is required and comparison with the outcomes on the facts in different cases is unlikely to be of any material assistance.

46.However, the case law establishes clearly that love and affection between family members are not of themselves sufficient. There has to be something more. Normal emotional ties will not usually be enough; further elements of emotional and/or financial dependency are necessary, albeit that there is no requirement to prove exceptional dependency. The formal relationship(s) between the relevant parties will be relevant, although ultimately it is the substance and not the form of the relationship(s) that matters. The existence of effective, real or committed support is an indicator of family life. Co-habitation is generally a strong pointer towards the existence of family life. The extent and nature of any support from other family members will be relevant, as will the existence of any relevant cultural or social traditions. Indeed, in a case where the focus is on the parent, the issue is the extent of the dependency of the older relative on the younger ones in the UK and whether or not that dependency creates something more than the normal emotional ties.

47.The ultimate question has been described as being whether or not this is a case of “effective, real or committed support” (see AU at [40]) or whether there is “the real existence in practice of close personal ties” (see Singh 1 at [20]).

48.Assuming that family life is established and Article 8 thus engaged, the relevant question (when dealing with the application of Article 8 to the removal of non-settled migrants who have developed a family life with someone while residing unlawfully in the host state) can be put in one of two ways, one positive and one negative:

  1. i) Whether or not the applicant’s right to respect for his/her family life under Article 8 imposes on the host country an obligation to permit him/her to continue to reside there (a positive obligation); or
  2. ii) Whether or not removal would be a disproportionate interference (a negative obligation).

As was remarked in Ali v Secretary of State for the Home Department [2016] UKSC 60[2016] 1 WLR 4799 (by Lord Reed at [32]), however, the mode of analysis is unlikely in practice to make any difference to the outcome. One is essentially asking the same question and considerations of onus of proof are unlikely to be important where the relevant facts have been established. Ultimately, whether the case is considered to concern a positive or negative obligation, the question is whether a fair balance between the relevant competing interests has been struck.

49.A central consideration when assessing the proportionality of the removal of non-settled migrants from a contracting state in which they have family life is whether the family life was created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the host state would from the outset be “precarious”. In such cases, it is likely only to be in exceptional circumstances the removal of the non-national family member will constitute a violation of Article 8 (see Agyarko at [49] approving Jeunesse (at [108]))

50.What was meant by “exceptional circumstances” was made clear at [54] to [60] in Agyarko, namely circumstances in which a refusal would result in unjustifiably harsh consequences for the individual such that the refusal of the application would not be proportionate. This is to be assessed in the context of a proportionality exercise which gives appropriate weight to the policy in the Immigration Rules, considers all factors relevant to the specific case in question, and ultimately assesses whether, giving due weight to the strength of the public interest in the removal of the person in the case before it, the Article 8 claim is sufficiently strong to outweigh it. In general, in cases concerned with precarious family life, a very strong or compelling claim is required to outweigh the public interest in immigration control.

………………..

52.Thus, in considering the question of proportionality, the courts must, albeit at a general level, take the SSHD’s policy (as reflected in the Immigration Rules) into account and give it considerable weight, alongside a consideration of the relevant facts of the case in question”.

 

Court of Appeal’s conclusion on whether a family life existed between the Appellant and her adult children

In finding that a family life existed between the Appellant and her adult children in the UK, the Court reasoned as follows:

  • The First Tier Tribunal Judge (FTT Judge)’s conclusion that family life did not exist was unsustainable as a matter of principle.
  • That family life existed was apparent on the basis of the FTT Judge’s own findings of fact, with which there was no need to interfere for this purpose.
  • In reaching his conclusion that the appellant had not established family life for the purpose of Article 8, the FTT Judge appeared to have been influenced by his view that, were the appellant to be in Pakistan, her children could still provide for her, house her, pay for carers, check that she had taken her medication and “in effect either directly or indirectly do all of the things they currently do”. The Court of Appeal however concluded that put the cart before the horse: the question of whether or not arrangements would be the same or similar in Pakistan, whilst potentially relevant to the question of proportionality, was immaterial to the question of whether or not family life in the UK existed in the first place.
  • Further, whilst the FTT Judge recognised the practical support provided by her children, he appeared to have failed to take proper account of additional key features, in particular: the fact that the appellant had co-habited with her son (and younger daughter) in the UK since 2014. This was not necessarily sufficient to establish family life of itself but it was certainly a very powerful factor; the fact that the appellant’s children provided not just practical and financial support but also emotional support in circumstances where the appellant, already widowed, had recently lost her family home in Pakistan to fire; the fact that the appellant provided support to her daughter and care for her grandson.
  • These were all matters which, at least cumulatively, went beyond the existence of normal emotional ties; they provided clear grounds for a finding that the appellant’s children provided their mother with real and effective support and that she in turn had a real dependency on them. Thus, the FTT Judge was wrong to hold that family life did not exist, and the Upper Tribunal Judge, who was clearly troubled by that finding, was wrong to uphold the FTT Judge’s decision to this effect.
  • The Court of Appeal indicated that to this extent, they would allow the appeal.

 

APPLICABLITY OF THE ADULT DEPENDANT RULES

The Court of Appeal set out the requirements of the Entry Clearance Adult Dependant Relative Rules (ADR ECR):

“37.The ADR ECR came into force on 9 July 2012 as part of changes to the Family Migration Rules. They provide for the granting of entry clearance as an ADR. To meet the eligibility requirements for entry clearance as an ADR all of the requirements in E-ECDR.2.1 to 3.2 must be met (see E-ECDR.1.1). Those requirements so far as material are as follows:

“Relationship requirements

2.1 The applicant must be the-

(a) parent aged 18 years or over;…

of a person (“the sponsor”) who is in the UK.

2.3 The sponsor must at the date of application be-

(a) aged 18 years or over; and

(b) (i) a British citizen in the UK; or

(ii) present and settled in the UK;…

2.4 The applicant…must as a result of age, illness or disability require long-term personal care to perform everyday tasks.

2.5 The applicant…must be unable, even with the practical and financial help of the sponsor, to obtain the required level of care in the country where they are living, because-

(a) it is not available and there is no person in that country who can reasonably provide it; or

(b) it is not affordable.

Financial requirements

3.1 The applicant must provide evidence that they can be adequately maintained, accommodated and cared for in the UK by the sponsor without recourse to public funds.

3.2 If the applicant’s sponsor is a British citizen or settled in the UK, the applicant must provide an undertaking signed by the sponsor confirming that the applicant will have no recourse to public funds, and that the sponsor will be responsible for their maintenance, accommodation and care, for a period of 5 years from the date the applicant enters the UK if they are granted indefinite leave to enter.”

38.If the applicant meets the requirements for entry clearance as an ADR of a British Citizen or person settled in the UK they will be granted indefinite leave to enter; if not, the application will be refused (see D-ECDR.1.1 and D-ECDR.1.3)”.

 

Following that the Court summarised relevant principles:

39.These rules were considered in Britcits upon a judicial review challenge to their lawfulness. The claimant charity contended, amongst other things, that the rules were incompatible with Article 8. The claim failed. As for Article 8, it was held i) that family life engaging Article 8 did not exist in every case where a UK sponsor wanted to bring an elderly parent to the UK in order to look after him/her; ii) that the new rules would not result in a disproportionate outcome in virtually all cases where Article 8 was engaged; and iii) that significant weight was to be given to the prior consultation, parliamentary debate and approval of the policy and objectives of the new rules (see [72] to [80], [82], [83], [86] to [88] and [90])

40.At [58] Sir Terence Etherton MR identified the policy behind the ADR ECR as follows:

“…It is twofold: firstly, to reduce the burden on the taxpayer for the provision of health and social care services to those ADRs whose needs can reasonably and adequately be met in their own country; and, secondly, to ensure that those ADRs whose needs can only reasonably and adequately met in the UK are granted fully settled status and full access to the NHS and social care provided by local authorities. The latter is intended to avoid disparity between ADRs depending on their wealth and to avoid precariousness of status occasioned by changes in the financial circumstances once settled here.”

41.The test now imposed for entry as an ADR has rightly been described as “rigorous and demanding” (see Ribeli (at [43]).

42.The Immigration Rules also provide a route by which an ADR may apply for indefinite leave to remain as an ADR (see Section E-ILRDR of Appendix FM) under which an applicant must, amongst other things, meet all of the requirements of Section E-ILRDR (see E-ILRDR.1.1). Those requirements include that the applicant must be in the UK with valid leave to remain as an ADR and provide evidence of non-recourse to public funds (see E-ILRDR.1.2 and 1.4)”.

 

Court of Appeal’s approach to Article 8 proportionality considerations on the Appellant’s claim:

The Court considered as follows:

  • The flaw in the appellant’s approach was to ignore the fact that the FTT Judge’s consideration of proportionality proceeded (necessarily) on the express premise that he was wrong in his conclusion on family life and that, contrary to his earlier finding, family life existed.
  • His approach or conclusion on proportionality was not flawed.
  • The FTT Judge considered and identified the law accurately-he stated correctly that the issue was ultimately one of proportionality in all the circumstances.
  • The FTT Judge had read the evidence founding the existence of family life and relating to the appellant’s circumstances in the UK, including as to her health, dependence on her children, relationship with her grandson and pastimes. He also heard and saw the appellant and two of her children give evidence; he set out and assessed the reliability of that evidence carefully. He was also aware of the death of the appellant’s husband, the loss of the family home in a fire, and the appellant’s broader family circumstances in Pakistan. There was no reason to think that these were not all matters that he properly weighed in the balance when considering proportionality.
  • At the same time, he was aware that the appellant was an educated person who could even now live independently in Pakistan where she had grown up, married, had children and spent all of her married life (and beyond). She would be financially supported and provided with accommodation by her children were she to return; she could also receive practical and emotional support from them (even if only from a distance). She had no significant health issues.
  • Further, as the authorities referred to make clear, the FTT Judge was entitled to place considerable weight on the fact that the appellant’s relevant family life (that is to say, her family life in the UK) was established at a time when her status here was precarious. She never had indefinite leave to remain in the UK (see Rhuppiah v Secretary of State for the Home Department [2018] UKSC 58[2018] 1 WLR 5536at [44]), and from 23 July 2015 onwards had no right whatsoever to remain. The FTT Judge was entitled to conclude that a refusal to allow the appellant to remain would not result in unjustifiably harsh consequences for her and that, accordingly, exceptional circumstances had not been established.
  • Whilst the grandson’s interests fell to be considered, it is clear that they were not seen by the parties as being of material significance in the context of the proportionality exercise overall. Without underplaying the potential importance of a grandparental relationship, the facts here were far removed from those in Jeunessefor example, where the three children involved were the children of the applicant who was their “primary and constant carer”. The FTT Judge’s approach reflected the appellant’s apparent position before him as to the weight to be attached to the grandson’s interests in the balancing exercise to be carried out.

 

Relevance of the Adult Dependent Relatives Rules to the Article 8 proportionality assessment in the Appellant’s claim:

The Court of Appeal concluded that:

  • The FTT Judge was self-evidently aware of the relevant context, namely that the appellant had not pursued an application under the ADR ECR and was applying outside the Immigration Rules under Article 8.
  • It was common ground that whether or not the appellant would have qualified for entry under the ADR ECR was not determinative of the question of whether or not the refusal decision was compatible with Article 8. However, the fact that the Secretary of State, in the discharge of her statutory duty to regulate immigration, has set out a clear policy, reflected in the ADR ECR, as to the requirements to be met by ADRs seeking to settle in the UK will be a powerful factor in any Article 8 assessment of proportionality. This proposition is clearly established on the authorities (for example in Agyarko (at [47])
  • Whilst those representing the appellant were not in a position formally to concede the position, it could not realistically be suggested that the appellant would have met the requirements in 2.4 and 2.5 of the ADR ECR. Her physical condition came nowhere near the threshold (of requiring long-term personal care to perform everyday tasks) and she could obtain the required level of care in Pakistan. The fact that the appellant may not burden the UK taxpayer’s purse because she could access private healthcare in the UK was no answer to the Secretary of State’s position, in the sense that she would still not meet the relationship requirements of the ADR ECR. In any event, the appellant’s reliance on the fact that her children were wealthy was at odds with the second limb of the Secretary of State’s policy as identified in Britcitsat [58], which is to avoid disparity between ADRs depending on their wealth.
  • The ADR ECR, reflecting the Secretary of State’s policy as approved by Parliament and upheld as lawful in Britcits, provide the conventional pathway for entry to the UK as an ADR. Whether deliberately or otherwise, the appellant circumvented that route by coming as a visitor to the UK, overstaying and then applying for leave to remain outside the Immigration Rules. She presented the Secretary of State with the sort of “fait accompli” referred to by Lord Reed in Agyarko at [54]: “…. the Convention is not intended to undermine [a state’s right to control the entry of non-nationals into its territory and their residence there] by enabling non-nationals to evade immigration control by establishing a family life while present in the host state unlawfully or temporarily, and then presenting it with a fait accompli. On the contrary, “where confronted with a fait accompli the removal of the non-nationals family member by the authorities would be incompatible with article 8 only in exceptional circumstances”: Jeunesse, para. 114.”
  • In these circumstances, the FTT Judge’s finding on proportionality was fully justified. Indeed, taking the strength of the family life at its highest on the facts, there was really only ever one realistic answer on the question of proportionality, namely that the refusal decision was not incompatible with the appellant’s right to respect for her family life under Article 8.
  • This was a case where the appellant will be cared for in Pakistan by one or more of her children (who will move to live with her), were she to have to return to Pakistan. The appellant acknowledged that one or more of them would return to live with her and each child stated that he/she would do so (albeit reluctantly). Ribeliconfirms that the willingness of a child to return abroad with the parent can be an important factor in favour of refusal of leave to remain. However, unlike the position in Ribeli, there has been no finding here that it would be reasonable for one or more of the appellant’s children to return to join her in Pakistan (even if, as a matter of fact, they would be prepared to do so). In these circumstances, the Court did not lay any material weight on what would in any event be only an additional factor in favour of an already justified refusal.

The Court of Appeal therefore rejected the challenge to the FTT Judge’s conclusion on proportionality and upheld the Upper Tribunal Judge’s dismissal of the appeal against it.

 

Is it possible to rely on evidence of illegal working using someone else’s identity as proof of 20years continuous residence in the UK?

An applicant may have accrued periods of a combination of both lawful and unlawful residence  in the UK for the requisite 20years yet face a dilemma in seeking to evidence continuity of residence in circumstances where during the relevant period, he has documentation from the HMRC or employer that shows he has  worked in the UK illegally using someone else’s  identity.

How has the Tribunal approached such circumstances in which an applicant has on application and appeal relied upon such evidence of working illegally in the UK over a prolonged period of time?

In Mahmood (paras. S-LTR.1.6. & S-LTR.4.2.; Scope) Bangladesh [2020] UKUT 376 (IAC) the Upper Tribunal considered such an appeal.

Summary background and use of false identity to work in the UK:

The appellant, a national of Bangladesh claimed that he arrived in the UK as a visitor in 1994.

Whilst in the UK, he applied for asylum in 1996: the claim did not succeed and the appellant exhausted his rights of appeal in 1997. He then applied for indefinite leave to remain in 2009 however the application was refused with no right of appeal. An application of 2014 for leave to remain was unsuccessful.

By further submissions dated 8 September 2016, the appellant sought leave to remain on human rights (article 8) grounds, relying upon his having been present in the UK for over 20 years.

The following had occurred as noted by the Home Office in applications the appellant had submitted:

  • He had been encountered by immigration officers at his place of work in 1996
  • He had worked in various restaurants having falsely adopted the identity of a British citizen, ‘Rezaul Karim’, who was born in 1976. In securing employment, he used Mr. Karim’s National Insurance number.
  • The Home Office observed that previously submitted tax documents were not in the appellant’s name and that the NI number relied upon belonged to another person.
  • In support of his further submissions submitted in 2016, by letter of 5 December 2017, the appellant confirmed that he had been residing with his uncle in Wales since 1995 and relied upon documentation in his false identity to establish that he had been employed since 1997 and thereafter secured access to the NHS.

Basis of Home Office refusal decision – 20years continuous residence not evidenced and suitability criteria not met:

The appellant’s application under the 20year long residence Rule was refused by the Secretary of State by decision dated 14 December 2017 on the following basis:

  • The Home Office accepted that the appellant entered the United Kingdom on 18 December 1994 and that he remained in the UK until 1997. It was however noted that no satisfactory evidence had been provided confirming that the appellant had resided in the UK after the conclusion of his appeal in 1997 and his application for settlement in 2009.
  • It was decided that the appellant was unable to provide evidence of continuous residence between those years and concluded that he failed to meet the requirements of paragraph 276ADE(1)(iii) of the Rules.
  • Further, it was observed as to suitability that when the appellant applied for indefinite leave to remain on 29 July 2009, he submitted documents which were verified as not being genuine, namely eleven P60 forms dated from 1998 to 2009. The HM Revenue & Customs confirmed that the documents submitted did not match their records and that the NI number used was not issued in the appellant’s name.
  • Consequently, the appellant was found to have failed to meet the suitability requirements for leave to remain under paragraphs S-LTR.1.6. and S-LTR.4.2. of Appendix FM.

Relevant Suitability Criteria under the Immigration Rules:

Section S-LTR of Appendix FM details the suitability requirements to be met in a leave to remain application made by those seeking to remain in the United Kingdom. An applicant can be refused limited leave to remain on grounds of suitability if relevant paragraphs  of  S-LTR apply.

Paragraph S-LTR.1.6. provides for a mandatory refusal stating that an applicant will be refused limited leave to remain on grounds of suitability where the following applies:

‘S-LTR.1.6.  The presence of the applicant in the UK is not conducive to the public good because their conduct (including convictions which do not fall within paragraphs S-LTR.1.3. to 1.5.), character, associations, or other reasons, make it undesirable to allow them to remain in the UK.’

Paragraph S-LTR.4.2. provides for a discretionary refusal and states an applicant may be refused on grounds of suitability if:

‘S-LTR.4.2. The applicant has made false representations or failed to disclose any material fact in a previous application for entry clearance, leave to enter, leave to remain or a variation of leave, or in a previous human rights claim; or did so in order to obtain from the Secretary of State or a third party a document required to support such an application or claim (whether or not the application or claim was successful)”.

Dismissal of the appeal by the First Tier Tribunal Judge:

The Judge concluded as follows:

  • The appellant had not simply used the alias of Rezaul Karim in order to obtain work but also to access NHS services, visiting his GP on a regular basis since 2001 and having been referred on several occasions for hospital investigations.
  • The appellant had engaged in sustained deceit over the course of more than a decade.
  • The Judge concluded that the documents relied upon arising from employment, such as the P60s, possessed an innate character as documents containing false representations.
  • It was determined that the appellant’s personal history including character, conduct and employment history made it undesirable to allow him to remain in the UK and so his application fell for refusal under both the mandatory suitability ground established paragraph S-LTR.1.6. and the discretionary ground of paragraph S-LTR.4.2.
  • Consequently, the Judge found that the appellant did not meet the suitability requirements of the Rules and so could not meet the requirements for leave to remain on the grounds of private life in the UK set out in paragraph 276ADE.

Upper Tribunal concludes paragraph S-LTR.1.6. inapplicable:

The Upper Tribunal noted that in respect of the appellant’s employment and tax documents the Secretary of State’s decision of 26 June 2014 stated:

‘14. … The earliest record of your client in the United Kingdom is when he was encountered working without authority and claimed asylum on 19 January 1996, however, satisfactory evidence has not yet been provided to show that he has lived continuously in the United Kingdom since that date. Tax documents have previously been provided, however, as stated in previous refusal letters, the P60s are not in your client’s name and HMRC confirmed that the National Insurance number is that of a British citizen born in 1976”.

The Home Office decision of 14 December 2017, in relation to considerations of suitability under Appendix FM and as to paragraph S-LTR.1.6. stated:

‘For the reasons given below, your application falls for refusal on the grounds of suitability in Section S-LTR under paragraphs 276ADE(1)(I) of the Immigration Rules because:

When you applied for indefinite leave to remain on 29 July 2009 you submitted a number of documents which were verified as not being genuine. HM Revenue & Customs confirmed that the eleven P60 forms dated 1998, 1999, 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2008 and 2009 submitted with that application did not match their records and that the National Insurance number used was not issued to anyone by your name.

Given the above your presence in the UK is not conducive to the public good as your conduct and character make it undesirable to grant leave to remain. You therefore fail to meet the requirements for leave to remain because paragraph S-LTR.1.6. of Appendix FM of the Immigration Rules applies.’

The Upper Tribunal reasoned as follows in deciding that the Secretary of State was not entitled to refuse the appellant’s application on suitability grounds under paragraph S-LTR.1.6:

  • The Upper Tribunal was satisfied that the context of the introduction of paragraph S-LTR.4.2. was to give authority to the Secretary of State to refuse an application on grounds of suitability if false representations have been submitted, or there has been a failure to disclose materials facts, in a previous immigration application.
  • The insertion of paragraph S-LTR.4.2. was to address a failure of the suitability requirements previously established under Section S-LTR in not permitting the Secretary of State to adversely rely upon the previous use of false representations and related concerns.
  • In such circumstances, the Upper Tribunal was satisfied that the scope of paragraph S-LTR.1.6. was not sufficiently wide to capture the use of false representations in an application for leave to remain before the Secretary of State or in a previous application for leave to enter or remain.
  • The Upper Tribunal concluded paragraph S-LTR.1.6., a mandatory ground of refusal, does not cover the use of false representations or a failure to disclose material facts in an application for leave to remain or in a previous application for immigration status.
  • Consequently, it was decided that the First Tier Tribunal Judge materially erred in law in finding that the Secretary of State could refuse the appellant’s application on suitability grounds under paragraph S-LTR.1.6. of Appendix FM.

Upper Tribunal concludes first clause of paragraph S-LTR.4.2 inapplicable:

In relation to paragraph S-LTR.4.2, the Upper Tribunal stated that two separate basis upon which the Secretary of State may exercise discretion to refuse an application for leave to remain can be summarised as:

  • the use of false representations or a failure to disclose any material fact in a previous application and
  • the use of false representations in order to obtain a document required to support such an application.

Consequent to their independent nature, the Upper Tribunal was satisfied that reliance upon one or both of the elements must be specifically pleaded and reasoned by the Secretary of State in her decision letter, or if upon becoming aware of further information the Secretary of State seeks to exercise her discretion during the course of the subsequent appeal process it should be by means of an addendum decision providing reasons with an appellant being given sufficient time to counter the serious nature of the underlying allegation as to conduct.

It was noted that by her decision of 14 December 2017, the Secretary of State relied upon the first independent clause of paragraph S-LTR.4.2. concerned with the applicant having made false representations in a previous application for leave to remain or a variation of leave, or in a previous human rights claim

In reaching the conclusion that there were no false representations made on the appellant’s behalf in his application, the Upper Tribunal reasoned as follows:

“82. In this matter the appellant has consistently informed the respondent that whilst he dishonestly assumed an identity and a NI number to secure employment, and used the identity as a British citizen to secure access to the NHS, he was open and honest to the respondent as to the employment and tax documents accompanying the application having been secured through the use of the false identity. We consider it important that the P60 forms, genuinely issued but the product of dishonesty as to identity, were peripheral to the application for leave to remain on long residence grounds. Their purpose was to demonstrate long residence, but it was not a requirement of the relevant rule that the appellant provide P60s. They were relied upon by the appellant to establish his long residence, a task they were capable of satisfying, and not to establish that the appellant was the person named upon them. Nor did the documents establish that the appellant enjoyed a right to work lawfully in this country or to meet any financial requirement established by any relevant paragraph of the Rules. The false representation in this matter was in providing various employers with a dishonesty assumed identity and NI number to secure employment. The employment and tax documents were produced consequent to the appellant having secured employment in his false identity. Having openly informed the respondent from the outset as to his actions, there were no false representations made on the appellant’s behalf in his application that he was a British citizen called Rezaul Karim who was born in 1976, possessed a particular NI number, was lawfully entitled to work and through the course of lawful employment had earned the sums detailed by the eleven P60 forms.

83.Upon considering [17] of the decision we are satisfied that the Judge materially erred in adopting the broader interpretation of the first independent clause of paragraph S-LTR.4.2. Whilst observing that the appellant had openly declared that he assumed the identity of Mr. Karim to secure employment, the Judge considered the innate characteristic of the documents are containing ‘false representations’ through the deliberate dishonesty employed to secure them. Such an approach uncoupled the requirement that the false representation be made ‘in a previous application’ and instead broadened the use of a false representation to the securing of any document used in the previous application, even if there were clear and adequate admissions to the respondent from the outset as to the circumstances in which the documents were obtained.

84. We conclude that paragraph S-LTR.4.2. is disjunctive with two independent clauses. The respondent is consequently obliged to plead and reason her exercise of discretion to refuse an application for leave to remain based on one or both of those clauses. By her decision of 14 December 2017, the respondent only relied upon the first clause. The natural meaning of the first clause requires that the false representation or the failure to disclose any material fact must have been made in support of a previous application and not be peripheral to that application. The reliance upon employment and tax documents, openly confirmed to have been secured through the long-time use of a false identity, was peripheral to the previous application for leave to remain on private life grounds under paragraph 276ADE(1)(iii) and also peripheral to the earlier application for ILR on long residence grounds. The Judge therefore materially erred in finding that the suitability requirement established by the first clause of paragraph S-LTR.4.2. was applicable to the appellant”.

Upper Tribunal concludes second clause of paragraph S-LTR.4.2 also in applicable:

The Upper Tribunal also concluded that Secretary of State could not, on any view, meet the requirements of the second clause on the facts of the case.

The Upper Tribunal stated that the use of false representations is clearly linked to the obtaining ‘from the Secretary of State or a third party a document required to support such an application or claim’. In principle, the deception should relate to the act of obtaining the document for the purposes of supporting an application or claim to remain in the United Kingdom. This is consistent with the use of the words ‘required to support’ which confirms a compulsory element to the use of the document(s) within the application or claim process. It was noted that such compulsion is identified by the relevant Rules or guidance.

The Upper Tribunal concluded:

“88. We therefore conclude that the use of the words ‘required to support’ in the second clause of paragraph S-LTR.4.2. confirms a compulsory element to the use of document(s) within the application or claim process, and the obtaining of the document(s) must be for the purposes of the immigration application or claim.

89. We observe that the appellant has relied upon documents arising from his employment, such as the P60s, in long residence and article 8 (private life) applications alone and not, for example, in an application where he was required to establish his earnings. He always confirmed by means of his applications that the documents were secured with the adoption of another person’s identity. The false representation was to his employer(s), namely that he was a British citizen called Rezaul Karim who was born in 1976, possessed a certain NI number and was lawfully permitted to work. Such false representations were not made to obtain a document for the purpose of supporting an application for leave to remain in the United Kingdom. The documents were solely generated consequent to the appellant having secured employment. We are satisfied that upon a natural reading of the second clause the securing of the employment documents relied upon by the appellant in this matter were not secured through false representations to support an application for leave to remain. In any event we observe that such employment and tax documents are not required for an application for leave to remain under paragraph 276ADE(1)(iii). Consequently, even taking the respondent’s case at her highest under the second clause of paragraph S-LTR.4.2. she could not succeed”.

Conclusion

The Upper Tribunal found that the appellant did not fall to be refused under the suitability requirements detailed at paragraph 276ADE(1)(i). The Upper Tribunal was satisfied that the appellant had been continuously present in the UK for a period of over 20 years. The appellant met the requirements of paragraph 276ADE(1)(iii) and the Upper Tribunal allowed his appeal on Article 8 private life human rights grounds.

To an applicant, the ultimate question in practice is whether the Upper Tribunal’s conclusion in allowing the appeal in Mahmood means that any applicant who has been working in the UK for a prolonged period of time using someone else’s identity and national insurance can succeed in an application under the long residence rules by reliance on documentary evidence of illegal working as proof of residence?

Maybe. Maybe not. It all dependants on the facts of each case and also whether the Secretary of State after Mahmood has now developed a strategy intended to limit the effects of that judgement.

In any case,  several individual considerations will be in issue.

Home Office application forms require clarification whether an applicant is working.  Even where the applicant is working illegally at the date of application, the answer is Yes. If the applicant is no longer working at the date of the application, then the answer is No.

Faced with no other documentary evidence to show length of residence in the UK for the past 20years, an applicant may seriously need to consider that rather than continue to remain in the UK for an indeterminate period undocumented or liable to removal, they may have no other choice but  to submit evidence of prolonged illegal working in the UK in their long residence application.