News and updates

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.

Automatic extension of leave – some good news

28th October 2021 By Katie Dilger

Clients often ask whether they can continue to work while an application is outstanding. The answer is generally yes, provided that they were permitted to work before and made a valid in-time application. This is because leave is automatically extended by law while an in-time application is pending.

Leave is also extended if the application is refused and the person submits an in-time appeal or application for administrative review. The person’s leave only falls away once the appeal rights or the administrative review is no longer pending.

When leave is extended in this way it is called “section 3C leave” after the provision of the Immigration Act 1971 which sets out the mechanism for leave to continue.

Section 3C leave is incredibly important because it keeps people here lawfully. It prevents a person from losing their job or an entitlement to access NHS treatment free of charge.

Earlier this year the Court of Appeal looked at what happens to section 3C leave when a person lodges an appeal out of time. For example, a person normally has 14 days to lodge an appeal against the refusal of an in-country application for leave as the partner of a British citizen. If the person who has section 3C leave lodges the appeal in time, their section 3C leave will continue while the appeal is pending. What the court looked at is what happens if the appeal is late.

The Court of Appeal concluded that section 3C resurrects from the date the appeal papers are lodged, provided that the Tribunal later grants the person extension of time for the lodging the appeal papers. In late October 2021, the Home Office updated its guidance to reflect this. This is available at 3C and 3D leave – GOV.UK (www.gov.uk).

This development may be very useful for individuals and families who have missed an appeal deadline but were previously lawfully present with section 3C leave. Provided the Tribunal grants the extension of time, they will become lawfully present again from the date the appeal papers were lodged. This does not, however, assist those who lodge late appeals and did not have section 3C leave at the date the application was refused.

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

The new International Sportsperson visa

22nd October 2021 By Imogen Simpson

As of 11 October 2021, the Home Office have introduced a new visa route for professional sportspeople and coaches entitled the International Sportsperson visa. This will be replacing the previous Tier 2 Sportsperson and Tier 5 Sporting and Creative Worker categories for sportspeople, and combining them into one category to make applications more straightforward.

The key requirements an individual will need to meet to obtain a visa under this category are as follows:

they must be 16 years of age or older;
they must have an endorsement from their Governing Body confirming that they are internationally established at the highest level and will make a significant contribution to the development of their sport at the highest level in the UK (the list of approved sporting bodies can be found under Appendix Sports Governing Bodies: Immigration Rules Appendix Sports Governing Bodies – Immigration Rules – Guidance – GOV.UK (www.gov.uk));
they must have been assigned a valid Certificate of Sponsorship by their sponsor;
they must satisfy the financial requirement; and
they must meet the English language requirement if applying for a period of leave that is longer than 12 months.

This will be a route to settlement, and dependants will be able to apply under this visa category in line with the main applicant.

This visa allows the visa-holder to undertake work for their national team, should their national team be in the UK for a competition, as well as provide expert guest commentary for sporting events.

The introduction of this singular visa route for professional sportspeople and coaches is a welcome simplification of the application process and guidance for those in the sporting profession. Furthermore, it will allow for Creative Workers to fall under its own distinct route, in recognition of how different the two sectors are.

For more information on the requirements for this visa category please see the Home Office’s guidance: Immigration Rules Appendix International Sportsperson – Immigration Rules – Guidance – GOV.UK (www.gov.uk)

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

Late applications to the EU Settlement Scheme

30th September 2021 By Orla Papadakis

If you’re from the EU, Switzerland, Norway, Iceland or Liechtenstein, you and your family might have needed to apply to the EU Settlement Scheme to continue living in the UK. This includes people who hold a permanent residence document or an EEA biometric residence card.

The deadline for applying to the EU Settlement Scheme, for most people, was 30 June 2021. If you have missed this deadline, you can still make an application.

You must either:

meet one of the criteria for a later deadline to apply
have ‘reasonable grounds’ for not applying by 30 June 2021

The scheme provides the following not complete list of possible reasonable grounds for not applying by the deadline:

you’re a child, or applying for your child, and you did not know you needed to apply
your parent, guardian or local authority did not apply for you when you were a child
you have, or had, a medical condition which prevented you from applying
you lacked the physical or mental capacity to apply
you have care or support needs, or those caring for you were unaware of the deadline
you’ve been the victim of modern slavery
you’ve been in an abusive or controlling relationship
you did not have internet access, or access to relevant documents
you came to the UK on a work or study visa and became eligible to apply to the EU Settlement Scheme while you were here, but did not know you could apply
you already have indefinite leave to enter or remain, and you did not know you could apply to the scheme
you had permanent residence status or a residence document that stopped being valid after 30 June 2021, and you did not know you needed to apply to the scheme
you had difficulty accessing support to apply because of coronavirus (COVID-19) restrictions
another compelling practical or compassionate reason prevented you applying

The caseworker guidance suggests that the Home Office will be taking a fairly flexible approach to late applications, at least initially, stating:

For the time being, you will give applicants the benefit of any doubt in considering whether, in light of information provided with the application, there are reasonable grounds for their failure to meet the deadline applicable to them under the EU Settlement Scheme, unless this would not be reasonable in light of the particular circumstances of the case.

The best advice is to apply as quickly as possible, with evidence as to why the application is late. The evidence could, for example, include proof of a medical reason why the application has been delayed.

For more information on deadlines please see:

the government website: https://www.gov.uk/settled-status-eu-citizens-families/eligibility
the guidance: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1004627/main-euss-guidance-v13.0ext.pdf

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

Ambitious roadmap to streamlined sponsorship

2nd September 2021 By Rachael Ockenden

The Home Office has recently set out a roadmap for a sponsorship system that will enable employers to have an overseas worker ready to start work in the UK faster than in any other G20 country. The Home Office is looking to streamline the process for companies and universities becoming sponsors, and for workers and students to obtain immigration permission for the UK.

Substantial changes had already been made to the Skilled Worker category in response to Brexit, which significantly reduced the length of the process to recruit a worker from overseas eg by removing the resident labour market test.

The Home Office is now planning a series of changes to further overhaul the sponsorship system.

The next set of changes include:

a review of the documentation required for a sponsor licence application (with the intent of making it easier for a company to register as a sponsor);
the establishment of a service that supports small and micro businesses (the Home Office currently provides individual support to sponsors, but at a fee of £25,000 per year);
a review of the fees the sponsorship system entails (the Home Office has acknowledged the current fees disproportionately affect smaller sponsors);
the introduction of an enhanced Skilled Worker eligibility checking tool; and
piloting a new salary check feature with HMRC to check employees are being paid the amount a sponsor has confirmed.

The Home Office’s digitalisation plans (Digitalisation of the Immigration System (gryklaw.com)) will also serve the sponsorship system, allowing for automated checks and more knowledge sharing between the Home Office and HMRC. This automatic data sharing will in turn be used to further monitor compliance among sponsors.

One of the most welcome changes will be the updating of the Sponsor Management System, which has not changed since it’s introduction in 2008, though we will have to wait until the end of 2022 at the earliest for this.

Please do not hesitate to contact us at contact@gryklaw.com or on 020 7401 6887 if you need any advice on the above.