Changes to the Private Life Route: Appendix Private Life (ILR/Settlement)
In my previous article, I set out the provisions of the new Appendix Private Life for leave to remain applications which will come into force on 20 June 2022. In this article, I will address the indefinite leave to remain (settlement) provisions that will take effect on the same day. Those can be split into sub-categories as follows:
ILR/Settlement on the Private Life route:
- For children born in the UK;
- For persons who have or were last granted leave as a child or as a young adult;
- For adults aged over 18 who do not qualify under the above sub-category.
Validity Requirements for a Private Life ILR Application
The validity requirements for settlement on the Private Life route are the same for all the aforementioned sub-categories, other than the requirement to have or have last been granted permission on the Private Life route. This does not apply to a child born in the UK. This effectively means that such a child can be granted settlement without having ever applied for or been granted limited leave to remain in the UK, provided that they meet the requirements.
All other applicants for settlement under Appendix Private Life will be required to have or have had leave on the Private Life route for a settlement application to be valid. This requirement does not apply to leave to remain applications, which do not require the applicant to have or have ever had leave in the UK.
The remaining validity requirements are identical to those applicable to leave to remain applications under the Appendix Private Life.
Suitability Requirements for a Private Life Settlement Application
The suitability requirements for settlement on the Private Life route are more complex than those for leave to remain on the same route. An applicant for settlement should not fall for refusal on the relevant suitability grounds for ILR under Appendix FM (S-ILR.1.2, S-ILR.1.6 to S-ILR.1.10, S-ILR.3.1, S-ILR.2.2, and S-ILR.4.2 to S-ILR.4.5) as well as under paragraph 9.6.1 of the Immigration Rules.
There are additional suitability requirements and exceptions. A person must be refused settlement on the Private Life route if:
- They have been convicted of a criminal offence in the UK or overseas, for which they have received a custodial sentence of 12 months or more;
- They have been convicted of an offence in the UK or overseas for which they have been sentenced to imprisonment for less than 12 months, unless they have completed a qualifying period of 10 years’ continuous residence with leave on certain categories (broadly on the basis of private and family life in the UK) and they have completed 5 years’ continuous residence with such leave since the end of their sentence (those can run concurrently);
- They have been involved in a sham marriage or civil partnerships, have used false documents or information or deception, owe litigation debt to the Home Office (unless paid), owe a debt of £500 or over in charges to the NHS (unless paid), or have breached the conditions of their leave, unless they have completed a qualifying period of 10 years’ continuous residence with leave on certain categories (broadly on the basis of private and family life in the UK) and they have completed 5 years continuous residence with such leave after the date of the first grant of leave after the suitability ground came to the attention of the decision-maker (effectively, after leave was granted in the knowledge of the suitability ground);
- They entered the UK illegally, unless they are a child or young adult and were granted leave to remain on the basis of private life, or unless they completed a qualifying period of 10 years with leave on certain categories (broadly on the basis of private and family life in the UK).
Finally, in order to qualify for settlement, the applicant must not be in the UK on immigration bail or in breach of immigration laws, unless paragraph 39E applies.
Whilst certainly adding a layer of complexity, the introduction of periods following which certain types of conduct will not result in a refusal of settlement under Appendix Private Life is a welcome change, given that most grounds of refusal in Part 9 are not expressed in finite terms.
Eligibility Requirements for ILR under Appendix Private Life
The eligibility requirements for settlement under Appendix Private Life differ depending on the relevant sub-category.
Children born in the UK
There are three eligibility requirements for children born in the UK:
- The applicant must have been born in the UK and must provided a full UK birth certificate;
- The applicant must have lived continuously in the UK since their birth and for at least 7 years at the date of application; and
- The decision-maker must be satisfied that it is not reasonable to expect the applicant to leave the UK.
Whilst the sub-heading is “Child born in the UK requirements for settlement on the Private life route”, the wording of the requirements does not specify that the applicant should be a child on the date of application.
Applicants who were not born in the UK
For applicants who were not born in the UK, there is now a 5-year and 10-year route to settlement.
An applicant who has, or last had, leave to remain on the private life route as a child, or as a young adult who met the half-life test, must have lived in the UK for a “continuous qualifying period of 5 years with permission on specific routes.
An applicant who is aged 18 or over at the date of application and does not fall under the above sub-category, must have lived in the UK for a “continuous qualifying period” of 10 years with permission on specific routes.
The specific routes are set out in paragraph PL 14.3. and generally include entry clearance or leave to remain in one of the family life or private life routes, as well as leave outside the rules on the basis of family or private life under Article 8 ECHR. Leave on other routes that lead to settlement count towards the qualifying period, provided that the applicant did not enter the UK illegally (unless they have leave to remain on the private life route as a child or young adult) and has had leave under the current or new private life provisions for at least one year at the date of application.
The continuous residence requirements of Appendix Continuous Residence also have to be met in relation to the qualifying period for settlement, which includes provisions in relation to absences from the UK and breaks in continuous residence. This is a change from the existing eligibility rules for ILR under paragraph 276DE(a), which does not include consideration of absences.
English language and Life in the UK requirement
Finally, there is an English Language (level B1 CEFR in speaking and listening) and knowledge of life in the UK requirement (the Life in the UK test). Exemptions apply to children, applicants who are at least 65 years of age and where the decision maker considers that, because of the applicant’s mental or physical condition, it would be unreasonable to expect the applicant to fulfil either or both parts of that requirement, as per the relevant Appendix.
Decision on an ILR or Settlement Private Life Application under Appendix Private Life
The applicant will be granted settlement, otherwise known as indefinite leave to remain if the decision-maker is satisfied that the suitability and eligibility requirements of Appendix Private Life are met.
If the requirements are not met, but the decision maker believes the applicant is likely to meet the requirements for leave to remain on the private life route, the application for settlement will be varied to a leave to remain application. In these circumstances, no additional application fee will be required but the settlement application fee (which is higher than the leave to remain application fee) will not be refunded. The Secretary of State will inform the applicant of the variation and if required, will request that the applicant pay the Immigration Health Surcharge. If that is requested and not paid, or a fee waiver for it is not requested and granted, the application for leave to remain will be rejected as invalid and the application fee will not be refunded. The period granted and attached conditions will be in accordance with the provisions of paragraphs PL 10.1-10.5.
The application will be refused if the decision-maker is not satisfied that the applicant meets all the suitability and eligibility requirements for settlement or leave to remain on the Private Life route.
Contact our Immigration Barristers
For expert advice and assistance with applications and appeals on the basis of private and family life under Article 8 ECHR, contact our immigration barristers in London on 0203 617 9173 or complete our enquiry form below.
