New discretionary leave policy – Appendix FM & Paragraph 276ADE

The introduction of the new policy under Appendix FM and Paragraph 276ADE of the Immigration Rules HC395 are part of the Home Office “Human Rights” Application.

Family life with children

Where a person asserts that they have family life with children, the decision maker must ensure that the person can satisfy all of the factors listed at (a) to (e) below:

(a) They have a genuine and subsisting parental relationship with a child who is under 18.

(b) The child is in the UK.

(c) The child either

1. is British; or

2. has lived in the UK for at least 7 years preceding the date of the immigration decision.

(d) It would not be reasonable to expect the child to leave the UK.

(e) There is no other family member who is able to care for the child in the UK.

Family life with a partner

Where a person asserts that they have family life with a partner, the decision maker must ensure that the person can satisfy all of the factors listed at (a) to (e) below:

(a) They have a genuine and subsisting parental relationship with a partner.

(b) The partner is in the UK.

(c) The partner either

1. is British; or

2. is settled in the UK; or

3. has limited leave as a refugee; or

4. has limited leave as a person granted Humanitarian Protection.

The person has been in the UK with valid leave for a continuous period of 15 years preceding the date of the immigration decision (discounting any period of imprisonment). There are insurmountable obstacles to family life with that partner continuing overseas.

What constitutes private life in the UK

A person who is liable for deportation shall not be deported on the grounds of private life in the UK if: He has lived in the UK for 20 continuous years (not including any periods of imprisonment) and he has no ties (including social, cultural or family) to his country of origin; or He is aged below 25 years and has spent at least half of his life in the UK and he has no ties (including social, cultural or family) to his country of origin. 20 continuous years‟ are not to be regarded as broken where the person left the UK for periods of up to 6 months provided that at all times he was ordinarily resident in the UK, for example, brief holidays or work placements overseas do not necessarily stop the period of residence.

If a person falls within 1.1(a) above, or falls within 1.1(b) or (c) and does not meet the Family Life or Private Life Exception, deportation will be the proper course in all but exceptional cases.  In determining whether a case is exceptional, decision makers must consider all relevant factors that weigh in favour and against deportation. “Exceptional” does not mean “unusual” or “unique”. Decision makers should be mindful that whilst all cases are to an extent unique, those unique factors do not generally render them exceptional. For these purposes, exceptional cases should be numerically rare. Furthermore, a case is not exceptional just because the exceptions to deportation in Rule 399 or Rule 399A have been missed by a small margin.  Instead, “exceptional” means circumstances in which deportation would result in unjustifiably harsh consequences for the individual or their family such that deportation would not be proportionate. That is likely to be the case only very rarely.

The decision maker should carefully consider all of the points raised by the person in relation to the application of any exceptions set out above as well as any exceptional issues raised. Decisions must not be taken on the basis of mere assertions about private and family life. Factors relating to private and family life claims should be evidenced. The decision maker should carefully assess the quality of any evidence provided.