New Immigration Rules for Afghan Citizens

Following the Statement of Changes in Immigration Rules HC628, a new category of leave to enter has been created with effect from 1 October 2013. Part 7 of the Immigration Rules now provides a category for leave to enter to be granted to ‘relevant Afghan citizens’ and their dependents.

This category was created following a written Ministerial Statement of the Secretary of State for Defence, dated 4 June 2013. Within this statement, the Secretary of State acknowledged the contributions and commitment demonstrated by local Afghan staff who have assisted the UK in their international mission to stabilise the country. The Secretary of State announced that, in return for their hard work, financial and educational packages would be available to locally engaged staff. They have the choice of training or education in Afghanistan in a subject of their choice and with a living allowance, or a financial severance payment which is equivalent to 18 months’ salary.

However, a third option was also provided. The Secretary of State acknowledges that some local staff in Afghanistan, such as interpreters, have worked in dangerous and challenging roles in Helmand province. In return for this service, a resettlement package has been introduced for certain ‘relevant Afghan citizens’. As part of the resettlement package, entry clearance will be granted to those who qualify for a period of five years with the offer of assistance in relation to accommodation, access to benefits and support for obtaining employment in the UK.

The Immigration Rules were therefore updated to take account of this new immigration category.

Who is a relevant Afghan citizen?

Paragraph 276BB1 of the Immigration Rules states that a relevant Afghan citizen is a person who:

a) Is in Afghanistan
b) Is an Afghan citizen;
c) Is aged 18 years or over;
d) Was employed in Afghanistan directly by the Ministry of Defence, the Foreign and Commonwealth Office or the Department for International Development;
e) Was made redundant on or after 19 December 2012;
f) The Ministry of Defence, the Foreign and Commonwealth Office, or the Department for International Development has determined that the applicant should qualify for the resettlement redundancy package as described within the written Ministerial statement dated 4 June 2013.

Applying the above definition and drawing on the comments of the Secretary of State for Defence in the Ministerial Statement, the class of persons who could potentially qualify for entry clearance in this capacity is limited to local staff, such as interpreters who have assisted UK forces as part of their operations in and around Helmand province. The Statement confirms that local staff must have routinely worked in dangerous and challenging roles in Helmand outside protected bases.

Also included are staff members who have been seriously injured who might have qualified under this provision had their employment not been terminated due to injuries sustained during combat.

In addition, local staff contracted by the UK, but who mostly worked for Danish or Estonian forces who meet the above criteria above, are also potentially eligible.

The determination as to whether an individual qualifies in accordance with the Ministerial Statement lies with the Ministry of Defence, the Foreign and Commonwealth Office, or the Department for International Development, who, arguably, are best placed to make such a determination. Having obtained a suitable recommendation an application for leave to enter the UK as a relevant Afghan citizen can be made.

a) All applications will need to meet a suitability requirement. An application will be refused under this category if:
b) The application falls to be refused under the general grounds for refusal contained within Part 9 of the Immigration Rules;
c) There are serious reasons for considering that the applicant has committed a crime against peace, a crime against humanity, or any other serious crime;
d) There are serious reasons for considering that the applicant is guilty of acts contrary to the aims and purposes of the United Nations;
e) There are serious reasons for considering that the applicant constitutes a danger to the community or to the security of the UK;

A refusal of leave to enter would attract a right of appeal under section 82(2) of the Nationality, Immigration and Asylum Act 2002.

Dependents of a relevant Afghan citizen

A relevant Afghan citizen can include a partner and/or a dependent child (under 18) as part of his or her application for leave to enter the UK. All dependents must be citizens of Afghanistan and be in Afghanistan.

It is important to note that paragraph 276BG1 states that the dependents must be included at the time the principal applicant submits their application. Additional dependents cannot normally be added after the application has been made. If the application is successful, the applicant and dependents must all travel to the UK at the same time.

Partner of a relevant Afghan citizen

A ‘partner of a relevant Afghan citizen’ includes the applicant’s spouse, civil partner, or unmarried partner provided that they have been living together in a relationship akin to a marriage or civil partnership for a period of at least two years before the date of the application.

Paragraph 276BL1 imposes a number of relationship requirements which must be satisfied. This states as follows:

‘The relationship requirements for a partner of a relevant Afghan citizen (the principal applicant) are that:

a) they are aged 18 or over at the date of application;
b) they are in a relationship with the principal applicant that is not within the prohibited degree of relationship;
c) they have met the principal applicant in person;
d) they are in a genuine and subsisting relationship with the principal applicant;
e) if the principal applicant and partner are married or in a civil partnership, they must be in a valid marriage or civil partnership and must provide reasonable evidence to the equivalent of a marriage certificate or civil partnership certificate issued in the United Kingdom and valid under the law in force in the relevant country
f) any previous relationship of the principal applicant or their partner must have broken down permanently, unless it is a relationship which falls with paragraph 278(i) of these Rules; and
g) they must intend to live together permanently in the UK with the principal applicant’.

If the application is successful then limited leave to enter will be granted for a period of five years.

Child of a relevant Afghan citizen

Paragraph 276BP1 of the Immigration Rules defines a minor dependent child of a relevant Afghan citizen or their partner as follows:

a) the child of the principal applicant or the partner of the principal applicant who is also seeking leave to enter the United Kingdom on the same application; and who
b) was under the age of 18 at 19 December 2012;
c) is not married or in a civil partnership;
d) has not formed an independent family unit; and
e) must not be leading an independent life.

In addition, paragraph 276BQ1 of the Immigration Rules imposes a relationship requirement which must be satisfied. It must be demonstrated that the child is:

a) the child of the main applicant and the child’s other parent is the relevant Afghan citizen’s partner; or
b) the child of the main applicant and either
i) the child’s other parent is dead; or
ii) the main applicant has sole responsibility for the child’s upbringing; or
c) the child of the main applicant’s partner and either
i) the child’s other parent is dead, or
ii) the main applicant’s partner has sole responsibility for the child’s upbringing; or
d) is the adopted child of the main applicant as defined within paragraph 309A or 309B of the Immigration Rules and additionally satisfies the requirements at paragraph 310 (vi) – (xi) of the Rules; or
e) is the adopted child of the main applicant's partner who is also seeking leave to enter the UK on the same application and as defined at paragraphs 309A or 309B of the Rules and where the requirements at paragraph 310 (vi) – (xi) of the Rules are satisfied.

For further advice regarding the possibility of submitting an application for leave to enter as a relevant Afghan citizen or in relation to any other aspect of UK immigration law then please contact our experienced immigration barristers in Covent Garden, London, on 0203 617 9173 or by email info@richmondchambers.com.