Paragraph 34 of the Immigration Rules provides the requirements to be met in order for an application for leave to remain based on private and family life to be valid. An invalid application can be rejected unconsidered by the Home Office.
Two of the “mandatory” requirements are that the applicable Home Office application fee be paid ( currently £1033.00 plus biometrics enrolment fee of £19.20 per applicant) as well as the Immigration Health Surcharge (£1560.00 per applicant).
Under GEN.1.9. of Appendix FM, a valid application is not required when the Article 8 family or private life claim is raised:
- as part of an asylum claim, or
- as part of a further submission in person after an asylum claim has been refused, or
- where a migrant is in immigration detention- a migrant in immigration detention or their representative must submit any application or claim raising Article 8 to a prison officer, a prisoner custody officer, a detainee custody officer or a member of Home Office staff at the migrant’s place of detention, or
- in an appeal (subject to the consent of the Secretary of State where applicable)
For example:
- An undocumented parent with a child who has resided in the UK continuously for at least 7years may claim asylum, say, on the basis that they fear return to their country of origin having engaged in a “mixed” marriage in the UK. Upon the Home Office making a decision on the asylum claim, Paragraph 276ADE(1)(iv) of the Immigration Rules will also be considered in relation to the child’s private life in the UK based on the 7year Rule. Where evidence of continuous residence is submitted and the “reasonableness test” is satisfied in relation to the child, as well as the Suitability criteria, leave to remain may be granted ultimately to the family on a 10year route to settlement if the asylum claim does not succeed.
- A failed asylum seeker may rely upon Paragraph 276ADE(1) (iii) of the Immigration Rules placing reliance on 20years continuous residence in the UK. Instead of submitting an online application and paying Home Office fees, such a person may rely on the Further Submissions procedure and make an appointment to submit their application package in person at UKVI Liverpool(current procedure however due to the Covid – 19 pandemic, is that Further Submissions are to be submitted via email or by post).
- A failed asylum seeker may have a British child, either due to the child obtaining registration as British having been born and resided in the UK for 10years or due to the child being British arising out of the applicant’s partner being British or settled in the UK. The failed asylum seeker applicant may rely on their family life with their British citizen Partner and British Child as a basis of stay in the UK via the Further Submissions Procedure.
- An applicant‘s asylum or human rights claim may have been refused by the Home Office however during the course of the appeal and before the appeal is heard, the appellant gives birth to a British child. The appellant may rely on the birth of their child as a new matter. A new matter is a human rights or protection claim that the Home Office has not previously considered in the decision under appeal or a response to a section 120 notice. However for the Tribunal to have jurisdiction in hearing the appeal on this issue, the Home Office must give consent to the new matter being adjudicated upon by the Tribunal Judge during the course of the appeal.
All this means that applicants whose circumstances fall into the above categories do not have to complete any online application form, nor make provision for Home Office fees. They should however provide written representations as to why they should be granted leave to remain in the UK and provide relevant supportive documents/evidence.
