Changes to the Private Life Route: Appendix Private Life (Leave to Remain)
On 15 March 2022, the Home Office published a 205-page Statement of Changes in Immigration Rules. Amongst the various changes introduced was the insertion of a new Appendix Private Life. This will take effect on 20 June 2022 and will apply to all applications made on or after that date, replacing paragraphs 276ADE to 276DH. Applications made before 20 June 2022 will be considered under the Rules in force on 19 June 2022, even if they are decided after that date.
Private Life Route – Leave to Remain/Permission to Stay and ILR/Settlement
In a similar fashion to the existing paragraphs 276ADE(1) and 276DE, Appendix Private Life maintains the option to apply for leave to remain (permission to stay) and indefinite leave to remain (settlement) on the Private Life route. For ease of reference, those can be split into sub-categories as follows:
Leave to Remain/Permission to stay on the Private Life route:
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- For children under 18;
- For young adults aged 18 to under 25, who meet the half-life test;
- For adults aged 18 or over, who do not qualify as young adults;
- Relying on Article 8 of the ECHR.
ILR/Settlement on the Private Life route:
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- 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.
New Category for Dependent Children Born in the UK to a Person on the Private Life Route
A new category has been introduced: Permission to stay and Settlement as a dependent child born in the UK to a person on the Private Life route. This is for children born in the UK who are not eligible for permission to stay or for settlement on the Private Life route on their own right (for instance, because they have not lived in the UK for at least 7 years) and who apply as dependants of their parents, who themselves are or have last been on the Private Life route.
In Part 1 of this series, I will address the provisions of Appendix Private Life insofar as they relate to leave to remain (permission to stay) on the Private Life route. The next part(s) will concern the provisions for settlement on the Private Life route and for limited leave and settlement as a dependent child.
Permission to Stay/Limited Leave to Remain on the Private Life Route
The new Appendix introduces separate validity, suitability and eligibility requirements.
Validity Requirements under Appendix Private Life
The validity requirements for permission to stay on the Private Life route are the same for all the aforementioned sub-categories.
The use of the online specified form is one of the validity requirements.
The other validity requirements relate to the payment of the application fee and Immigration Heach Charge (where applicable and not waived), the provision of biometrics, the provision of a passport or a travel document, and being in the UK on the date of application.
The first and third of those requirements will be waived if a private life claim (for permission to stay, not for settlement) is made under Article 8 at the same time as a protection claim or further submissions following the refusal of a protection claim, when the applicant is in detention or during an appeal.
It is important to note that an application that does not meet all of the validity requirements will be invalid and may be rejected without being considered. That effectively means that, not only will there be no right of appeal against the rejection (as a human rights claim will not be considered to have been refused), but it is also likely that section 3C will not be engaged as no application to vary leave will be considered to have been made (although on some occasions an application will not be invalid from the outset, such as where there is a failure to enrol biometrics). For this reason, it is very important to ensure that the validity requirements are met prior to applying.
Suitability Requirements under Appendix Private Life
For permission to stay, the suitability requirements for a Private Life application are the same as those of the existing paragraph 276ADE(1)(i), namely those set out in S-LTR.1.2. to S-LTR.2.2. and S-LTR.3.1. to S-LTR.4.5. of Appendix FM. There is one addition: the Private Life application must not fall for refusal under paragraph 9.6.1. of Part 9 (the general grounds of refusal). This applies where the decision maker is satisfied that it is more likely than not that the applicant is, or has been, involved in a sham marriage or sham civil partnership.
Eligibility Requirements under Appendix Private Life
As set out above, the eligibility requirements for a Private Life application vary depending mainly on the age of the applicant and they mirror the requirements of paragraphs 276ADE(1)(iii) to (vi). No substantive changes have been made to these.
Children under 18
A child under 18 at the date of application will still need to show that they have been continuously resident in the UK for at least 7 years and that it would not be reasonable to expect them to leave the UK.
Young adults aged 18 or over and under 25 (who meet the half-life test)
A person aged 18 or over and under 25 at the date of the Private Life application (a young adult) will need to have spent at least half of their life continuously resident in the UK. The requirement includes having arrived in the UK before the age of 18. It is unclear what this adds, given that if a person had arrived in the UK after the age of 12 and a half, they would not meet the half-life test by the time they were under 25 in any event.
Adults 18 or over (who do not qualify as young adults)
A person aged 18 or over (who does not meet the half-life test above if under 25) must either show they have been continuously resident in the UK for more than 20 years, or satisfy the decision-maker that there would be very significant obstacles to their integration into the country where they would have to live if required to leave the UK. There is a separate provision precluding applicants from meeting the last requirement (the very significant obstacles test) if they have made a protection claim that was declared inadmissible under Part 11 of the Rules; this mirrors paragraph 276ADE(2) that refers to Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004.
Continuity of Residence
There are provisions on how to consider the continuity of residence on the Private Life route. It is worth noting that continuous residence will break if an applicant has spent a total of 550 days or more absent from the UK during the relevant period (as opposed to 18 months, which were previously considered erroneously by the Home Office to amount to 540 days and were found by the Upper Tribunal to consist of 548 days). The Home Office like their rounded numbers, it seems, and have —generously— given away an extra 2 days to make up for the previously missing 8.
Date for Consideration?
It is noteworthy that, whereas paragraph 276ADE was worded so that all the requirements for leave to remain had to be met at the date of application, Appendix Private Life is worded so that only the age of the applicant is assessed at the date of application, not the substantive requirements (for instance, whether a child has been continuously resident in the UK for at least 7 years or whether an adult has for more than 20 years, or whether the half-life test is met). Neither does paragraph PL 9.1. (the “Decision” paragraph) refer to the date of application as the date for the assessment of the relevant eligibility or suitability requirements. Does that mean that these should be assessed at the date of consideration/decision? In the absence of express wording, that is arguable and could be relied on to an applicant’s favour.
Reliance on Article 8 ECHR
Finally, there is a category for individuals that do not meet some suitability requirements or the eligibility requirements. In order to be granted leave on the Private Life route, the decision maker must be satisfied that refusal of leave would breach Article 8 of the Human Rights Convention on the basis of private life (paragraph PL 8.1.). However, an application on the Private Life route will still be refused notwithstanding this, if the person falls for refusal under suitability paragraphs S-LTR.1.2., S-LTR.1.3., S-LTR.1.4., S-LTR.1.5., S-LTR.1.6 or S-LTR 1.8 (the “mandatory” suitability grounds). That is provided by paragraph PL 8.2.
It is hard to see how it would be lawful under s.6 of the Human Rights Act 1998 or compatible with the UK’s obligations under the ECHR if no leave was granted whatsoever when, despite an applicant falling for refusal on those suitability grounds, it was nonetheless found that to refuse leave would be a breach of his right to respect for his private life in the UK under Article 8. Conduct and character matters, including criminality and immigration breaches, are relevant to the proportionality exercise under Article 8(2). They cannot constitute additional exceptions or conditions when, having taken those matters into account, it has already been established that the refusal of leave would result in a breach. Thankfully, that’s nothing that an appeal could not fix: if the Home Office have accepted paragraph PL 8.1. applies (which would include consideration of conduct and character issues) and have only refused on the basis of PL 8.2., a tribunal judge should be prompt to find that the decision is unlawful under s.6 of the Human Rights Act 1998 and allow the appeal. The Rules are not, after all, a complete code and do not, alone, govern appellate decision-making (Hesham Ali (Iraq) (Appellant) v Secretary of State for the Home Department [2016] UKSC 60). Paragraphs PL 8.2. and 9.1. themselves, as opposed to their application to a specific decision, may be open to a lawfulness challenge under s.6 HRA 1998.
Private Life Decision, Period and Conditions of Grant
Paragraph PL 9.1. provides that leave will be granted if all the suitability requirements and the eligibility requirements for any of the above sub-categories (PL 3.1. for children, PL.4.1. for young adults, PL 5.1. for adults and PL 8.1. for those relying on Article 8) are met, otherwise the application will be refused. PL 9.1. also provides that an application will be refused even if the above requirements are met, when paragraph PL 8.2. applies. As set out above, I am dubious about the lawfulness of this provision.
It should be noted that, in neither the eligibility provisions nor in paragraph PL 9.1. is there a reference to an applicant being able to rely on having previously met the child and young adult requirements and been granted leave on that basis. There is such reference in the provisions regarding the period of the grant (PL 10.1. and PL 10.2.), but not in the eligibility requirements or the decision provision of paragraph PL 9.1. This is in contrast with the existing decision provision of paragraph 276BE(1), which provides for a grant of leave when an applicant previously met the eligibility requirements as a child or young adult and leave was granted. Such applicants do not have to show that they meet those requirements again for subsequent applications; for instance, if they are now over 18 or over 25 and cannot technically meet those requirements for that reason. It is unclear what this will mean for individuals who met those requirements in previous grants, but can no longer meet them: an obvious example is that of a person who was granted leave for 30 months as a young adult who met the half-life test close to their 25th birthday, and are 25 years old or over at the date they need to apply to extend their leave. According to the wording of the new eligibility requirements and paragraph PL 9.1., they would need to show that they meet the requirements for adults over 18 or rely on Article 8. Settlement is also not an option unless they have completed a continuous qualifying period of 5 years with leave on certain routes (broadly on the basis of private and family life). This is likely to be an oversight in the drafting of the Appendix.
Applicants who are under 18 or are young adults who meet the half-life test, or who were either when first granted permission on the private life route, will be granted leave for either 30 months (2.5. years) or 60 months (5 years), depending on which they have applied for. Leave for 5 years for these sub-categories is a new, welcome addition of Appendix Private Life. Not everyone will practically be in a position to apply for such a period, however, as that will require payment of the Immigration Health Charge covering a period of 5 years (unless that is waived, although it is unclear if a waiver will be available for applications for a period of 60 months).
Adults who cannot meet the half-life test and those relying on Article 8 will be granted 30 months at a time, with no option to apply for 60 months.
The grant of permission on the Private Life route will permit work and study (subject to the ATAS condition) as part of its conditions. There will be no access to public funds unless the applicant is destitute or at risk of imminent destitution, or there are prevailing reasons relating to the welfare of a relevant child. Police registration will be required where Part 10 of the Immigration Rules applies.
Next Part(s)
In the next part(s), I shall break down and comment on Settlement on the Private Life route; and Permission to Stay and Settlement as a dependent child born in the UK of a person on the Private Life route.
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