A Guide To Private Life Applications
July 2012 saw the introduction of the private life requirements into the Immigration Rules. The view of the government was that the previous rules did not provide a “clear and comprehensive framework for considering family life and private life”.
The key test for remaining in the UK, the period of seven years reflected the previous DP5/96 policy, under which children who had lived in the UK were not removed.
The Home Office consulted on the changes between July and October 2011 and were advised by the Migration Advisory Committee.
Private Life Applications
Paragraph 276ADE(1) of the Immigration Rules sets out the requirements to be met for an application based on private life:
“The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant:
(i) does not fall for refusal under any of the grounds in Section S-LTR 1.1 to S-LTR 2.2. and S-LTR.3.1. to S-LTR.4.5. in Appendix FM; and
(ii) has made a valid application for leave to remain on the grounds of private life in the UK; and
(iii) has lived continuously in the UK for at least 20 years (discounting any period of imprisonment); or
(iv) is under the age of 18 years and has lived continuously in the UK for at least 7 years (discounting any period of imprisonment) and it would not be reasonable to expect the applicant to leave the UK; or
(v) is aged 18 years or above and under 25 years and has spent at least half of his life living continuously in the UK (discounting any period of imprisonment); or
(vi) subject to sub-paragraph (2), is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but there would be very significant obstacles to the applicant’s integration into the country to which he would have to go if required to leave the UK.”
You can make an application for leave to remain in the UK on the basis of your private life in the following categories:
- If you are under 18 and you’ve lived in the UK continuously for at least 7 years, and it would be unreasonable to expect you to leave the UK
- You are between 18 and 24 and you’ve lived continuously in the UK for more than half your life
- You are 18 or over, have spent less than 20 years in the UK and would have very significant problems living in the country you’d have to go to – for example, you do not speak the language and could not learn it
- You are 25 or over and you’ve been in the UK continuously for 20 years
Suitability Requirement
The suitability requirements in Appendix FM Section S-LTR: Suitability-leave to remain must be addressed and considered which include criminal convictions, litigation costs and NHS debt. These requirements were designed to meet a number of public interest and legitimate aims.
Eligibility
It is possible to make a private life application whilst in the UK as an overstayer as well as for those who have currently leave to remain. There is no English language requirement and no minimum income requirement. The public interest is always a consideration. Applications are considered on an individual basis and integration is a relevant consideration. Given it is unlawful to operate a 20 year minimum requirement a caseworker must always consider whether there are exceptional circumstances in accordance with GEN.
Route to Settlement
In accordance with paragraph 276DE. An individual must have spent at least 120 months with leave on this basis in order to apply for settlement.
Application Process
Applications on this basis must be made online.
Relevant Considerations
Residence
For all applications a caseworker will need to assess whether the individual has been resident for a requisite period and that it is not broken. For most this will involve an assessment as to whether they have been absent for more than 6 months and 18 months in total.
A caseworker will expect to see evidence of that residence, including official documentary evidence. Passports and travel documents covering the period will be analysed.
If in the case of someone applying on the basis of having been in the UK for 20 years a wide ranging selection of material demonstrating their residence will be required.
Significant Obstacles to Integration
The Family Migration: Appendix FM Section 1.0b Family Life (as a Partner or Parent) and Private Life: 10-Year Routes Version 3.0 23 January 2019 sets out relevant considerations. At page 58 the guidance reads: “very significant obstacle to integration” means something which would prevent or seriously inhibit the applicant from integrating into the country of return. The decision maker is looking for more than the usual obstacles which may arise on relocation (such as the need to learn a new language or obtain employment). They are looking to see whether there are “very significant” obstacles, which is a high threshold”.
Relevant factors are listed as follows:
- Cultural background
- Length of time spent in the country of return
- Family, friends and social network
- Faith, political or sexual orientation or gender identity
Common claims are identified as those where an Applicant says they have no friends or family in the country of return or they have never lived in the country of return or spent early years there.
The guidance states that even where there is credible evidence and Applicant cannot speak the language, at page 61: “this will not in itself be a very significant obstacle to integration unless they can also show that they would be unable to learn a language of that country, for example because of a mental or physical disability.”
The life an individual has established in the UK is not relevant to whether there are serious obstacles to return.
Reasonableness of a Child leaving
The guidance at page 69 states: “There may be some specific circumstances where it would be reasonable to either expect the qualifying child to leave the UK with the parent(s) or primary carer or for the parent(s) or primary carer to leave the UK and for the child to stay. In deciding such cases, the decision maker must consider the best interests of the child and the facts relating to the family as a whole. The decision maker should also consider any specific issues raised by the family or by, or on behalf of the child (or other children in the family)”.
- the parent or parents, or child, are a citizen of the country and so able to enjoy the full rights of being a citizen in that country
- there is nothing in any country specific information, including as contained in relevant country information which suggests that relocation would be unreasonable
- the parent or parents or child have existing family, social, or cultural ties with the country and if there are wider family or relationships with friends or community overseas that can provide support:
- the decision maker must consider the extent to which the child is dependent on or requires support from wider family members in the UK in important areas of his or her life and how a transition to similar support overseas would affect them
- a person who has extended family or a network of friends in the country should be able to rely on them for support to help (re)integrate there
- parent or parents or a child who have lived in or visited the country before for periods of more than a few weeks. should be better able to adapt, or the parent or parents would be able to support the child in adapting, to life in the country o the decision maker must consider any evidence of exposure to, and the level of understanding of, the cultural norms of the country
- for example, a period of time spent living amongst a diaspora from the country may give a child an awareness of the culture of the country
- the parents or child can speak, read and write in a language of that country, or are likely to achieve this within a reasonable time period
- fluency is not required – an ability to communicate competently with sympathetic interlocutors would normally suffice
- removal would not give rise to a significant risk to the child’s health
- there are no other specific factors raised by or on behalf of the child
In KO (Nigeria) v SSHD [2018] UKSC 53, at paragraph 17, Lord Carnwath (with whom all Lord Justices agreed) held that nothing in ss.117B(6) imports a reference to the conduct of the parent. The question is what is “reasonable” for the child, and the parents immigration record is not a relevant factor. Lord Carnwath continues at paragraph 18 that the immigration status of the parents is indirectly relevant to the “reasonableness” test, only to the extent this ought to be considered in the “real world in which the children find themselves”.
JG (s 117B(6): “reasonable to leave” UK) Turkey [2019] UKUT 00072 (IAC), a judgment reported on 27 February 2019, states: “Section 117B(6) of the Nationality, Immigration and Asylum Act 2002 requires a court or tribunal to hypothesise that the child in question would leave the United Kingdom, even if this is not likely to be the case, and ask whether it would be reasonable to expect the child to do so”.
Section 55 of the Borders, Citizenship and Immigration Act 2009 requires the Home Office to make a decision in a way that considers the need to safeguard and promote the welfare of children in the UK. The child’s interests will be the primary, but not the only consideration.
Expert from independent social workers should be considered in respect of any children making an application or those affected by such a decision.
Private life applications are very much evidence based applications and it is important to gather as much evidence as possible from a wide range of sources.
Contact our Immigration Barristers
For expert advice and assistance in relation to a private life application, contact our immigration barristers in London on 0203 617 9173 or via the enquiry form below.
