Family and Private life and your right to remain in the UK
The Home Office has the ability to grant individuals in the UK with Discretionary Leave to Remain. Discretionary Leave to Remain is granted outside of the UK Immigration Rules under compassionate and compelling circumstances as well as in junction with the right to private and family life protected under Article 8 of the European Convention on Human Rights.
What are the requirements for Discretionary Leave to Remain?
Following the changes made to the Immigration Rules on 9th July 2012 and the introduction of Appendix FM, consideration of an individual’s private life is considered with reference to paragraph 276 ADE of the Immigration Rules.
It should be noted that Discretionary Leave to Remain is one of the only applications available to overstayers in the UK, excluding applications available under the European route derived from our membership with the European Union, and applications for asylum. Discretionary Leave to Remain is ideal for those without legal status who wish to make an application from within the UK, and those who do not fall under any of the other visa categories available under the Immigration Rules.
In order to apply for Discretionary Leave to Remain, it must be shown that an individual has spent a significant period of time in the UK. Paragraph 276ADE of the Immigration Rules, in summary, requires a valid application to be submitted on the grounds of having established a private life and that the applicant:
- has resided in the UK for a continuous period of 20 years; or
- is aged below 18 years old but has lived in the UK for 7 years continuously and requiring his/her departure from the UK would be unreasonable; or
- is aged between 18 years and under 25 years, and has spent half of his/her life in the UK; or
- is aged 18 years and above and has resided in the UK continuously less than 20 years however, there would be significant obstacles to integration in his/her home country if forced to leave the UK.
It should be noted that there are suitability requirements that must be met before an application is submitted, contact us if you are unsure of the suitability requirements and one of our dedicated immigration experts will be able to provide you with a detailed assessment.
In addition to relying on the above, Article 8 of the ECHR further protects an individual’s right to their private and family life. Article 8 of the ECHR states that:
- “Everyone has the rights to respect for his private and family life, his home and his correspondence.
- 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.”
This protected right allows those who are in the UK without legal status to possibly regularise their legal status without the requirement to depart from the UK. For some overstayers in the UK due to the length of their residence, have managed to establish their own family units and in some cases with a British partner or have a child who is British. It should be noted though that in circumstances where an overstayer has a genuine and subsisting relationship with a British citizen, it may be worth considering the spouse visa route instead.
If you require further information on the requirements of a spouse visa, please contact us on 0203 372 5125 and we can guide you through the lengthy and complex requirements.
There is therefore a provision within the Immigration Rules under Appendix FM which caters to those who have a settled partner and/or child in the UK. It is worth noting that section EX of Appendix FM states that the applicant must have a genuine and subsisting parental relationship with a child below 18 years of age and whom is a British citizen or has resided in the UK continuously for a period of 7 years. The provision further states that due to this relationship, it would not be reasonable to expect the child to leave the UK.
Appendix FM also caters to those who have a genuine and subsisting relationship with a partner who is settled in the UK and are unable to continue their relationship outside the UK due to insurmountable obstacles. On 28th July 2014, a definition of ‘insurmountable obstacles’ was inserted within Appendix FM; the definition states that insurmountable obstacles as very significant difficulties faced outside the UK which cannot be overcome or alternatively, that the obstacles would cause serious hardship for a couple.
In the recent case of R (on the application of Ikuga) v Secretary of State for the Home Department [2017] UKSC 11, it was stated that the insurmountable obstacles test is a harsh test to meet but that it remains compatible with Article 8 of the ECHR. If the test is met, the Home Office will need to grant leave under the rules because of the insurmountable obstacles.
In cases where the test is not met but refusal would lead to unjustifiably harsh consequences that would be deemed disproportionate to protecting the public interest, leave should be granted due to exceptional circumstances outside of the Immigration Rules. The Immigration Directorate Instructions states that leave can be granted outside of the Immigration Rules where exceptional circumstances are present. However, it is important to noted that, the Immigration Directorate Instructions further stipulates that exceptional does not mean unique/unusual, instead it means that the refusal of an application relying on provisions outside of the Immigration Rules would be disproportionate. It has therefore been concluded that the exceptional circumstances test is a test of proportionality rather than one of exceptionality.
If Discretionary Leave to Remain is granted, the applicant will be on the 10 year route to settlement. This means that the applicant will need to hold Discretionary Leave to Remain continuously for 10 years following which he/she may be eligible to apply for Indefinite Leave to Remain; the visa is generally granted for an initial 2 and a half years which must be continuously extended until the 10-year threshold is met. Migrants who obtain Discretionary Leave to Remain do not have access to public funds and as such they must be able to maintain and accommodate themselves privately without any assistance from the state.
Will I need to submit supporting documents with my application for Discretionary Leave to Remain?
Discretionary Leave to Remain is granted based on the Home Office’s discretion and whether it is evident that the circumstances of the case meet the requirements for Discretionary Leave to Remain. It is therefore imperative that the correct supporting documents are submitted with the application as this is will enable the applicant to evidence their claims properly under Article 8 as well as Appendix FM, if applicable. Without the necessary supporting documents, the application will be refused which will, undoubtedly, further complicate matters and can also negatively impact any future applications submitted by the applicant. Therefore, legal advice should be sought before an application is submitted, the case must be argued well and in detail as the burden of proof is initially on the applicant to evidence that he/she meets the requirements.
Contact us if you are uncertain as to whether you would be eligible to apply for leave outside of the Immigration Rules due to exceptional circumstances and/or Article 8 of the ECHR. Our dedicated team of immigration experts will assess your matter in detail and provide you with the most suitable options to regularise your status in the UK.
