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.