Article 8 ECHR changes: New immigration categories based on private and family life
On 9th July 2012, changes to the Immigration Rules came into force. Some of these new Rules will make it easier for people who want to stay in the UK due to their private or family life here.
Long residence
Rule 276ADE enables you to apply for leave to remain based on your length of residence if you meet one of the following requirements:
• You have lived in the UK for at least 20 years; or
• You are between 18 and 25 and you have lived in the UK for at least half of your life; or
• You are an adult who has lived in the UK for less than 20 years but you do not have any social, cultural or family ties to your home country; or;
• You are a child under 18 and you have lived in the UK for at least 7 years.
If your application is successful then you will be granted 2 and a half years' leave to remain in the UK. You will have to apply to extend this for a further 2 and a half years at a time. Once you have been in the UK for 10 years in this category, you can apply for indefinite leave to remain.
Family life with your child
If you do not meet the other requirements of the Immigration Rules then you may be able to apply for leave to remain based on your family life with your child or children under new provisions in the Immigration Rules.
You will need to show that you meet the following requirements:
• You have a genuine and subsisting parental relationship with a child under 18; and
• The child is in the UK; and
• The child is British or has lived in the UK for at least 7 years; and
• It would not be reasonable to expect the child to leave the UK; and
• You have not been sentenced to 12 months or more in prison for a criminal offence; and
• The Home Office does not consider that your presence in the UK would be contrary to the public good; and
• You have not previously failed to provide information to the Home Office or to attend for an interview or medical examination that they required of you.
If your application is successful then you will be granted 2 and a half years' leave to remain and you will need to apply to extend it as above.
Family life with your spouse or partner
If you do not meet all the requirements for leave to remain as a spouse or partner, then you may still be able to apply for leave to remain based on your family life. The Home Office have now created a category in the Immigration Rules to enable you to do this.
You will need to show that you meet the following requirements:
• You are in a genuine relationship with someone who is British or who has indefinite leave to remain, refugee status or humanitarian protection; and
• There are 'insurmountable obstacles' to family life with your spouse or partner continuing outside the UK; and
• You have not been sentenced to 12 months or more in prison for a criminal offence; and
• The Home Office does not consider that your presence in the UK would be contrary to the public good; and
• You have not previously failed to provide information to the Home Office or to attend for an interview or medical examination that they required of you.
(Please note that the courts have previously said that a requirement of 'insurmountable obstacles' breaches Article 8 of the European Convention on Human Rights and that the correct test should be whether it is reasonable for your spouse or partner to live outside the UK. This new requirement of the Immigration Rules is therefore likely to be challengeable in court.)
If your application is successful then you will be granted 2 and a half years' leave to remain and you will need to apply to extend it as above.
Deportation
If you have been convicted of a criminal offence and sentenced to at least 12 months in prison then you are automatically liable to be deported. However, you can avoid being deported if you can show that requiring you to leave the UK would breach your right to respect for private and family life under Article 8.
The new Immigration Rules say that in a deportation case you may be able to stay in the UK if you meet one of the following requirements:
1. Relationship with a child
• You have not been sentenced to 4 years or more in prison; and
• You have a genuine and subsisting parental relationship with a child under 18; and
• The child is in the UK; and
• The child is British or has lived in the UK for at least 7 years; and
• There are no other family members who could care for the child in the UK.
AND/OR
2. Relationship with a spouse or partner
• You have not been sentenced to 4 years or more in prison; and
• You are in a genuine relationship with someone who is British or has indefinite leave to remain, refugee status or humanitarian protection; and
• You have lived in the UK legally for at least 15 years before the decision to deport you (not including any time that you have spent in prison); and
• There are insurmountable obstacles to family life with your spouse or partner continuing outside the UK.
AND/OR
3. Long residence in the UK
• You have not been sentenced to 4 years or more in prison; and
• You have lived in the UK for at least 20 years before the decision to deport you and you have no social, cultural or family ties to your home country; OR
• You are under 25, you have spent at least half your life in the UK before the decision to deport you and you have no social, cultural or family ties to your home country.
OR
4. Exceptional circumstances
• You do not fall into any of the above categories but there are 'exceptional circumstances' in your case that mean requiring you to leave the UK would be disproportionate.
If you would like to apply for leave to remain or challenge a deportation decision based on your private and family life then please contact Richmond Canter Immigration Barristers for further information.
