Andrew Jones

Landmark High Court Case on Transnational Marriage Abandonment

4th November 2022 By Andrew Jones

Migrants who are in the United Kingdom as the partner of a British citizen can apply for indefinite leave to remain if that relationship breaks down permanently because of domestic abuse.

However, if that migrant is outside of the United Kingdom, they cannot apply for indefinite leave. That is because the wording of the Rules makes clear that the application can only be made from inside the United Kingdom.

This becomes a particular problem for migrants (usually women) who are victims of transnational marriage abandonment. This is a phenomenon whereby an abusive partner deliberately removes their partner from the United Kingdom, often by deception, and then leaves them stranded abroad. Common features of transnational marriage abandonment include taking away the woman’s visa and travel documents and the abusive partner contacting the Home Office to declare that the relationship has ended so that the woman’s visa is curtailed. These women have no recourse under the Immigration Rules to return to the United Kingdom, whereas if they were still in the United Kingdom, they would be eligible for indefinite leave to remain. This is the case even though transnational marriage abandonment has been recognised in the Family Courts as a form of domestic violence.

Nath Gbikpi set out this issue in further detail in an earlier blog.

On 14 October 2022, the High Court found that by treating victims of domestic violence differently depending on whether or not they are in the United Kingdom, victims of transnational marriage abandonment are being unlawfully discriminated against. The Home Office will now have to introduce new Rules and guidance to ensure that victims of transnational marriage abandonment are treated the same as victim of domestic violence who are in the United Kingdom. This should mean that they will be able to apply for indefinite leave to enter.

In the meantime, however, many women will have been excluded from indefinite leave on the basis of this discriminatory treatment. Some may have returned to the United Kingdom on different visas. It remains to be seen whether the Home Office will allow them to apply for indefinite leave to remain, too.

Our Diana Baxter wrote a detailed analysis on this issue on Lexis Nexis.

If you require advice in relation to the above, we would be happy to help. Please contact us on 020 7401 6887 or by email at contact@gryklaw.com.

Home Office introduces two new private life routes to ILR

23rd June 2022 By Andrew Jones

On 20 June 2022, a large number of changes were made to the Immigration Rules. Included in those changes is the introduction of two new routes to indefinite leave to remain (‘ILR’) on the basis of private life, which benefit children and young adults in the UK.

ILR for a child born in the United Kingdom

A child who was born in the UK may now apply for indefinite leave to remain where:

The child was born in the UK and can provide a full UK birth certificate.
The child has lived in the UK continuously since their birth and for at least seven years at the date of application.
It would not be reasonable to expect the applicant to leave the UK.

This rule closely mirrors provisions in the previous private life rules which allowed a child to apply for limited leave to remain in the UK if they have lived here for at least seven years and it would not be reasonable to expect them to leave the country. This ‘seven years rule’ also allowed the parents of such a child to make an application under the Parent route.

However, in light of these changes, the child can now apply for ILR at that stage if they were born in the UK.

Unfortunately, if the child was not born in the UK, then they will need to apply for limited leave to remain in the same way as before.

ILR for young adults in the United Kingdom

As we have covered in a previous blog in November 2021, the Home Office announced a concession to the private life rules to allow young adults aged between 18 and 25 years old who had spent more than half of their lives in the United Kingdom to apply for ILR after just five years.

The Home Office has now incorporated this concession into the Immigration Rules. Therefore, an applicant would be eligible for ILR where:

They were last granted leave to remain on the basis of their private life as a child or on the basis that they are aged between 18 and 25 years old and have spent more than half of their lives in the UK.
They have spent five years in the UK with leave to remain on the basis of private life, family life or outside of the Rules under Article 8. In limited circumstances, it can include time spent in the UK with different visas, so long as they had leave to remain on the basis of private life for at least one year before they apply.

This represents a far quicker route to ILR for young adults who, previously, had to wait 10 years until they were eligible.

If you would like more information or advice on how this may affect you or your children, we can help. Please contact us on 020 7401 6887 or by email at contact@gryklaw.com.

Home Office announces ILR concession for young adults

12th November 2021 By Andrew Jones

Migrants who are granted leave to remain on the basis of their private life are granted 30 months’ leave to remain on a 10-year route to settlement (indefinite leave to remain). One private life route in the Immigration Rules applies to young adults, and says that they will be granted 30 months’ leave to remain where they are aged between 18 and 25 years old and have spent more than half of their life in the United Kingdom. If granted, they will normally need to continue to extend that leave until they have had leave to remain in that category for 10 years. Only at that stage can they apply for indefinite leave to remain.

However, on 21 October 2021, the Home Office released guidance regarding a concession to grant indefinite leave to remain early for young adults who have lived most of their lives in the United Kingdom. Under the new policy, so long as certain criteria are met, the applicant may be granted indefinite leave to remain after just five years.

Who does this concession apply to?

The guidance states that an applicant will be able to apply for indefinite leave to remain after just five years (as opposed to 10 years) where they:

- - - are aged 18 or above but under the age of 25
    - have spent at least half of their 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
    - be eligible for leave under the private life grounds and have made an application under the private life rules

Where an applicant meets those requirements, the Home Office will take the following factors into account when considering whether to grant ILR after just 5 years:

- - - 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

Why has the Home Office done this?

The Immigration Rules allow migrants to apply for indefinite leave to remain after five years where they can meet the requirement of the family routes. If they cannot, they may be granted under the exceptions to the family rules, or on the basis of their private life. However, to reflect the fact that they cannot meet the requirements (in particular where they did not have valid immigration status), they are placed on a longer, 10-year route to settlement. The Home Office states that this is to, “encourage compliance with the core requirements of the Immigration Rules and encourage integration into society.” They add that, “The longer timeframe signals that a person should not benefit from the same entitlement as those who are compliant.”

However, following campaigning and litigation from organisations such as We Belong and Islington Law Centre, the Home Office has now accepted that this punitive approach is not necessarily appropriate in the context of young adults who were born in the UK or came here as children. Any failure to comply with the requirements of the Immigration Rules cannot be said to be the fault of children who were travelling and living with their parents. To reflect this, they have introduced this concession to allow some young adults in that position to apply for indefinite leave to remain after five years.

So, what does this mean?

This should mean that many young adults are eligible to apply for indefinite leave to remain immediately. It will also significantly reduce the time others will need to continue to wait until they become eligible. For these applicants, who may well consider themselves British in all but name, and for many of whom the United Kingdom will be the only country they know, they can achieve security in their immigration status which would have otherwise remained precarious long into adulthood.

However, this is a concession to the usual rules, and not an amendment to the rules. As such, it remains at the discretion of the Home Office whether to grant indefinite leave to remain depending on the applicant’s circumstances. The guidance is clear that those who have status dependent upon a parent or parents with leave to remain under Appendix FM are expected to continue on that route to settlement. In addition, the wording of the guidance is not totally clear and, as it is brand new, it can be tricky to predict how the Home Office will treat borderline cases. The concession does not appear to include those young adults on the private life route, granted because they were aged between 18 and 25 years old and had lived half of their lives here, but who are now over the age of 25. It would appear unfair and inconsistent to exclude them, but based on the wording of the guidance they appear unable to rely on this concession.

Overall, however, this marks a very positive and welcome change which could transform the lives of many young people in this country.

If you would like more information or advice on how this may affect you or your children, we can help. Please contact us on 020 7401 6887 or by email at contact@gryklaw.com.

Long residence ILR: what are the rules on absences from the UK?

15th April 2021 By Andrew Jones

Where a migrant can show that they have lived in the United Kingdom for at least a continuous, lawful 10-year period, they may be eligible for apply for indefinite leave to remain (‘ILR’).

However, one potential sticking point is whether they have been outside of the United Kingdom for too long. That is because the Immigration Rules say that for the period to be “continuous”, the applicant cannot have spent more than 18 months in total outside of the country during those 10 years, or any single absence of six months or more.

The Home Office guidance states that six months is calculated as 180 days and 18 months is calculated as 540 days. The Home Office interprets this very strictly and will only make exceptions to these limits in “compelling or compassionate circumstances”. There have been several stories in the news where applicants have been refused ILR due to their excessive absences, despite having perfectly good reasons for being outside of the country for as long as they were. Unfortunately, in the eyes of the Home Office, the reasons were not compelling enough.

Recently, the Upper Tribunal (Immigration and Asylum Chamber) looked at how the Home Office should be interpreting this rule. In particular, it looked at whether the limit is, in fact, 540 days. The Rules state that the applicant must not have been absent for 18 months – but how long is 18 months? A month is not a fixed period of time. The Home Office argued that a month should be interpreted as being 30 days long, which is how they calculated the limit as being 540 days. The Upper Tribunal disagreed and ruled that 18 months is 548 days and that the Home Office guidance was wrong.

On the face of it, this is not a big difference. However, it did make a big difference to Mrs Chang, whose appeal was being considered by the Upper Tribunal. She had been absent from the United Kingdom for 543 days during the 10-year period she was relying upon. As an illustration of how strict the Home Office is on this issue, her application was refused for that reason. Happily, after the Upper Tribunal decision, she will now be granted ILR.

We have a lot of experience making ILR applications on this basis, including advising clients on how to deal with excessive absences. If you have spent more than 10 years lawfully resident in the United Kingdom and would like advice or assistance on applying for ILR, please feel free to contact us on 020 7401 6887 or by email at contact@gryklaw.com.

Coronavirus: travellers to England required to self-isolate for 14 days

8th June 2020 By Andrew Jones

Starting from today, Monday, 8 June 2020, most travellers coming to England will need to self-isolate for 14 days and complete a ‘Passenger Locator Form’ so that the government can contact you if anyone you travelled with falls ill with COVID-19.

The government says that it has introduced these new rules to reduce the chance of a ‘second wave’ of coronavirus in the UK.

These new restrictions apply to most people travelling to England from outside of the Common Travel Area (the United Kingdom, the Republic of Ireland, the Isle of Man and the Channel Islands). If you are traveling from within the Common Travel Area, but were outside of it within 14 days of arrival, these rules apply to you, too. They apply equally to British citizens and foreign nationals.

Within 48 hours of departure, travellers need to complete a Passenger Locator Form. The form asks for your personal and travel details as well as where you will be staying for the first 14 days in the UK and an emergency contact in case you fall ill. The form can be found here. Travellers should print off a completed copy of the form or have it accessible on their mobile phone to show the Border Officer on arrival. Failure to do so can lead to a £100 fine and you may be refused entry (if you are not a British citizen).

Once in England, arrivals must self-isolate for 14 days. The rules on this are very strict, and much stricter than the current government guidance for those who are already here. If you are required to self-isolate, you cannot go out in public, go to work or go to school. You cannot leave your home for exercise or to walk your dog. You should not go shopping, even for essentials, and instead should arrange for these to be delivered. There is no “reasonable excuse” exception, not even in situations regarding childcare.

The only exceptions are:

If you are legally required to go somewhere (e.g. to take part in legal proceedings or a child moving between homes as part of a custody agreement);
You require urgent medical care;
To attend the funeral of a close relative;
To access basic necessities or essential public services and there are exceptional circumstances why these could not be delivered to you;
You needed to stay in safe overnight accommodation before travelling to the location where you would be self-isolating for the remainder of the 14 days; or
There is an emergency

Failure to follow these rules can lead to fines of up to £1000, or even up to £3200 in some circumstances. Migrants should be aware that they would be required to disclose these fines in applications for leave to remain and could see an application for British citizenship refused if it is made within three years from the date of the fine.

The full government guidance can be found here.

There is a long list of people who are exempt from these rules, which can be found here. These exceptions would not apply to most people coming to England, but does include diplomats, foreign representatives and other consular staff, those employed by the military, those who are only transiting and do not leave the airport and those (either living in the UK or outside of the UK) who travel in and out of the country at least once a week for work.

Please note, these rules only apply to England, as the Welsh, Scottish and Northern Irish governments have control over their own public health measures. At the time of writing, there were no regulations in place requiring quarantine for those living in Wales, Scotland or Northern Ireland.

If you require immigration advice in relation to the issues above, we can help. Please contact us on 020 7401 6887 or by email at contact@gryklaw.com