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Guidance for undocumented Commonwealth citizens

This information is for Commonwealth citizens (known as ‘Windrush’ cases) who are long-term residents of the UK and do not have documents to demonstrate their status. This page is not a substitute for immigration advice. To get legal advice, you can complete our free assessment form by clicking here.  When considering whether you come in within the policy, here are important key elements to consider: If you have lived in the UK permanently since before 1973 and have not been away for long periods in the last 30 years, you have the right to be here. If you came to the UK during the 1970s but after 1 January 1973 then you are not likely to have an automatic right to be here. However, you may be allowed to stay here permanently. Amber Rudd announced that the Home Office will: waive the citizenship fee for anyone in the Windrush generation who wishes to apply for citizenship – this applies to those who have no current documentation, and also to those who have it; waive the requirement to carry out a Knowledge of Language and Life in the UK test; waive the fee for the children of the Windrush generation who are in...

Leave outside the Immigration Rules

Leave outside the Immigration Rules (LOTR) is a new revised policy to grant leave to remain in the UK. The Home Policy on LOTR is being granted on the following basis: The circumstances in which someone may be granted leave LOTR are covered guidance relating to European Convention on Human Rights (ECHR) Article 3 medical, Discretionary Leave, or where there is an existing published concession. Applications relating to LOTR on Article 8 family and private life grounds must instead refer to the 5-year or 10-year partner, parent and private life guidance. Applications relating to Article 3 medical grounds must instead refer to the discretionary leave guidance. The Immigration Rules are designed to provide for the vast majority of those wishing to enter or remain in the UK however, the Secretary of State has the power to grant leave on a discretionary basis outside the Immigration Rules from the residual discretion under the Immigration Act 1971. From 1 April 2003 to 9 July 2012 the majority of applications which fell outside the Immigration Rules in the UK were considered within the discretionary leave (DL) criteria, which (along with humanitarian protection) replaced exceptional leave to enter or remain (ELTE or ELTR). This...

Regulation 24AA of the Immigration (European Economic Area) Regulations 2006

The Immigration (European Economic Area) (Amendment) (No.2) Regulations 2014 amended the Immigration (European Economic Area) Regulations 2006 so that an appeal against a deportation decision under regulation 19(3)(b) of the EEA Regulations will suspend removal proceedings, unless the SSHD has exercised her discretion to certify removal. The SSHD can certify removal if the person’s deportation before the conclusion of any appeal proceedings would not give rise to a real risk of serious irreversible harm or otherwise be unlawful under section 6 of the Human Rights Act 1998. If removal has been certified, it will only then be suspended if the person subject to removal has made an application to the courts for an interim order to suspend removal proceedings (e.g. judicial review) and that application has not yet been determined, or a court has made an interim order to suspend removal. The application of a regulation 24AA certificate does not prevent a person from lodging an appeal from within the UK; rather, by amending regulation 29 of the EEA Regulations, it limits the suspensive effect of that appeal. So, whilst a person may lodge an appeal in-country, the lodging of such an appeal does not suspend removal from the UK,...

Changes related to Asylum

Following the judgment of the Supreme Court in R (on the application of Alvi) (Respondent) v Secretary of State for the Home Department (Appellant), the Rules have been amended to include the requirements to be met for limited leave to remain as an unaccompanied asylum seeking child to be granted. The Rules reflect Home Office existing policy approach in terms of who qualifies for discretionary leave as previously set out in the Discretionary Leave guidance Unaccompanied children who submit asylum applications and who are over the age of 17 ½ will have their applications considered as children. If their claim for protection is refused, they are likely to have reached the age of majority when the asylum and appeals processes have concluded. Unaccompanied children can apply for leave under the Immigration Rules at the expiry of their current discretionary leave. As is current practice, existing contact management strategies are utilised to ensure that children, their social workers and legal representatives, apply for further leave at the conclusion of existing leave.

Changes related to EEA rules

Following the European Court of Justice case in Chen (C-200/02,) the UK created paragraphs 257C-E of the Immigration Rules to provide for entry as the carer or relative of an EEA national child in the UK. In the Upper Tribunal case of M (Chen parent: source of rights) Ivory Coast [2010] UKUT 277 (IAC), the domestic court confirmed that a primary carer of a self sufficient EEA national child had a directly enforceable EU right to enter and reside in the host state to facilitate the child’s free movement rights. This EU right is not subject to any restrictions imposed by the Immigration Rules regime. As a consequence it is no longer appropriate to deal with this category of case within the Rules.

Changes to the Immigration Rules relating to family and private life

The following minor changes and clarifications are being made to the Immigration Rules relating to family life. If you would like to get some legal advice before submitting an application for leave to remain based on Human Rights, contact us on 0207 237 3388 or e-mail us your query to info@icslegal.com.  • To clarify that the transitional provisions for further applications made by those granted entry clearance or limited leave to enter or remain under Part 8 of the Rules before 9 July 2012 can only be accessed by persons in the UK and subject to the requirements of Part 8 for such applications. • To provide that a person may apply for further limited leave to remain as a partner under Part 8 within a period of 28 days of the end of their last such leave. • To provide that the partner of a Points Based System migrant not on a route to settlement cannot switch into the partner route under Part 8 and amalgamate their leave as a partner under both routes towards the qualifying period for settlement. • To ensure that references to the UK National Recognition Information Centre are correct. (UK NARIC is the agency responsible...

Family life as a parent of a child in the UK

The new changes to the Appendix FM of the Immigration Rules HC395 have placed confusion on Home Office Officials. You are strongly recommended to seek legal advice from ICS Legal prior submitting an application for leave to remain or entry clearance.  The purpose of the route is to allow a parent:  with access rights or sole responsibility of a child in the UK to enter the UK, or  to continue to live in the UK on the basis that they: o have sole responsibility for the child o have access rights to the child, or o are the parent with whom the child normally lives. The parent route is not intended to be relied on by a person who remains in a genuine and subsisting relationship with the other parent of their child. The parent route is to help parental access to children when the parental relationship has broken down. It is aimed at single parents who have:  sole parental responsibility for their child, or  who do not live with the child but they have access rights to that child. In leave to remain applications, a migrant parent with whom the child normally lives, rather than their British...

Article 8 of the ECHR

Article 8 is a qualified right and any interference is permissible only so long as it is proportionate and justifiable. In the immigration context, Article 8 has assumed a distinctive role as it is frequently relied upon by foreign nationals who challenge their removal. These challenges have generated an enormous volume of case-law on the legal test to be applied as regards the balance to be struck between family life on the one hand and immigration policy on the other. But, to summarise, the key issue is this: should the courts accept that in most cases the balance between family life and immigration control has been laid down in the Immigration Rules – or should decision-makers themselves determine in each individual case where the proportionate balance lies? In Huang, the Court of Appeal held that the Immigration Rules represented the appropriate balance between public policy and private right: individuals who did not qualify under the ordinary immigration rules would only succeed under Article 8 grounds if their case was truly exceptional. However, when the same case went to the House of Lords, it held that there was no test of exceptionality: the ultimate question is whether the refusal of leave to enter or remain,...

Appealing against unfair decisions – Tribunal update

The recent ground-breaking decision of the Upper Tribunal of the Immigration and Asylum Chamber in Naved (Student – fairness – notice of points) [2012] UKUT 14 (IAC) has confirmed that the Tribunal considers itself to have the jurisdiction to allow immigration appeals on public law principles of general unfairness. This comes a time when the Immigration Rules, policies and application forms are being constantly updated sometimes causing applicants justified confusion. These decisions are therefore very welcome as they promise to open the door for Tribunal Judges to right some of the wrongs that are done whenapplications are refused. The case concerns a Tier 4 applicant who was refused leave to remain on maintenance grounds. He was not considered to have an “established presence” in the UK as he did not provide evidence to show that he completed his previous course of studies. The arguments concerned the issue of whether evidence of the Appellant’s evidence of having completed the course was admissible at the appeal and if not, whether it was unfair to refuse the application given that the application form did not require the appellant to provide proof of having completed the course. Upper Tribunal Judge Freeman, sitting with Justice Blake, President...