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:
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- 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
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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:
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- 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
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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.
