Home Office

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.

No Recourse to Public Funds – What does it all mean?

24th June 2021 By wesleygryk

S.115 of the Immigration and Asylum Act 1999 states that a person will have ‘no recourse to public funds’ if they are ‘subject to immigration control’. This means they have no entitlement to most welfare benefits, including income support, universal credit, housing benefit and a range of tax credits.

People ‘subject to immigration control’ include those with limited leave to remain, and this also extends to family members. For example, spouses/partners, children, adult dependant relatives and parents of children in the UK all have this condition imposed on their leave in these cases. Additionally, this is commonly imposed on asylum seekers and those who have overstayed their visas.

Failure to comply with the No Recourse to Public Funds condition may result in:

Your current permission to stay in the UK being revoked
Refusal of your visa extension application
Refusal of future settlement applications, including Indefinite Leave to Remain (ILR) or British citizenship.

Applying for a change of conditions

Paragraph GEN.1.11A of Appendix FM provides that certain types of leave will normally be granted subject to a condition of no recourse to public funds, unless the applicant has provided the decision-maker with:

(a) satisfactory evidence that the applicant is destitute as defined in s. 95 of the Immigration and Asylum Act 1999; or

(b) satisfactory evidence that there are particularly compelling reasons relating to the welfare of a child of a parent in receipt of a very low income.

For these purposes, a person is ‘destitute’ if they do not have adequate accommodation or enough money to meet living expenses for themselves and any dependants.

When leave has been granted subject to a condition of no recourse to public funds, an application must be made to lift that condition before public funds can be accessed. The Home Office provides for two circumstances in which a person can apply for a change of conditions:

since being granted leave, your financial situation has changed and you have become destitute, or there are now particularly compelling reasons relating to the welfare of your child on account of your very low income, or there are now exceptional circumstances in your case relating to your financial circumstances; or
you were destitute, or there were particularly compelling reasons relating to the welfare of your child on account of your very low income, or there were exceptional circumstances in your financial circumstances at the time of your application, but you failed to provide evidence of this and would now like to rely on this.

You may be able to apply for this change of conditions to allow access to public funds if you have leave to remain under the 10-year parent or partner route, and where the refusal of your application for leave to remain would breach your rights under ECHR Article 8 (the right to respect for private and family life).

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

High Court rules in favour of Windrush victim in landmark ruling

20th May 2021 By wesleygryk

While the Windrush Scheme was designed to remedy the historic injustices suffered by Windrush victims as a result of the failings of past administrations, the cracks in the present Scheme continue to be unveiled. In less than one month, the High Court has ruled against the Home Office twice in cases concerning Windrush. On 23 April 2021, in Hubert Howard v Secretary of State for the Home Department CO/979/2019, the High Court held that the Home Office’s practice of denying Windrush victims with minor criminal convictions citizenship as a result of them failing the restrictive “good character” requirement was irrational and unlawful. This judgment should encourage Windrush victims in a similar situation to re-apply.

The Windrush Scheme most recently came under the spotlight before the High Court on 6 May 2021 in R (Mahabir) v the Secretary of State for the Home Department [2021] EWHC 1177. This case concerned a Windrush victim, Mahabir, who was born in Trinidad and came to the UK at 3 months old. She lived in the UK for 8 years before returning to Trinidad in 1977. By virtue of the Immigration Act 1971, Mahabir became entitled to indefinite leave to remain (“ILR”) in the UK on 1 January 1973. However, this was lost when Mahabir returned to Trinidad and she was unaware of her right to regain her ILR by returning to the UK before 1 August 1988. It was not until 2018, when stories of the Windrush scandal had circulated widely that Mahabir was granted entry clearance for six months to allow her to collect the documentation confirming that her ILR had been restored.

Mahabir entered the UK alone, with her family (including her five children) remaining in Trinidad. In order for Mahabir’s family to join her in the UK, they had to pay application fees amounting to £22,909—an unaffordable fee for Mahabir and her family. Notably, the Windrush Scheme permits fee-free applications for leave to remain for a child of a Windrush victim if they live in the UK but a child living overseas must pay a full application fee.

Mahabir and her family challenged the Home Office’s refusal to allow them to make fee-free applications for leave to enter or remain under the Windrush Scheme. They argued that such refusal led to their family being separated for over 2 years, which was in breach of their right to respect for private and family life under article 8 of the European Convention on Human Rights (ECHR) and their right not to be discriminated against under article 14 ECHR.

The Court held that Mahabir’s article 8 rights had been breached by the unaffordable application fee which rendered the procedure effectively inaccessible and disproportionately interfered with her family life. The Court opined that a criterion of affordability should be introduced as a safeguard, rather than fee-free applications.

While the Court accepted that the benefits of the Windrush Scheme had deliberately been extended only to direct victims of the Windrush scandal, this policy rationale did not justify an interference with Mahabir’s article 8 rights. Ultimately, Mahabir was faced with what Mr Justice Smith described as a “thankless choice”: Mahabir either had to dispense with the remedies the Home Office had granted in order to remedy the injustice suffered by her and other Windrush victims, or she had to break up her family.

The Court held that the Home Office’s failure to treat family members of a Windrush victim preferentially in respect of application fees was indirect discrimination and in breach of article 14 ECHR. The Court also found that distinguishing between applications made from outside the UK and those made from within, when calculating fees, was both an arbitrary distinction and unjustifiable on the facts.

It is hoped that this case will assist many other Windrush victims in bringing their family to the UK.

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

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.