Leave to Remain on Private Life Grounds - Amendment to the Immigration Rules

Since 9 July 2012 the Secretary of State has primarily considered Article 8 claims within the context of the Immigration Rules. Appendix FM to those Rules sets out the circumstances in which entry clearance or leave to remain will be granted on the grounds of family life. Paragraph 276ADE of the Immigration Rules sets out the circumstances in which the Secretary of State will grant leave to remain in the UK on the ground of private life.

The Statement of Changes in Immigration Rules HC 532 introduces a number of amendments to the Immigration Rules, primarily in order to give effect to the first Commencement Order for the Immigration Act 2014 (Immigration Act 2014 (Commencement No. 1, Transitory and Saving Provisions) Order 2014 (SI 2014/1820)).

Paragraph 276ADE(1)(vi) will be amended with effect from 28 July 2014 and will require the Secretary of State to apply a revised (and possibly a more stringent) test before leave to remain will be granted on the grounds of private life.

Paragraph 276ADE(1)(vi) currently reads:

“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 has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK.”

In Ogundimu (Article 8 – new rules) Nigeria [2013] UKUT 60 (IAC) the Upper Tribunal considered the concept of ‘ties’ within the meaning of paragraph 276ADE(1)(vi). It was held that the term ‘ties’ involves something more than merely remote and abstract links to the country of origin, stating that there must be a ‘continued connection’ with life in that country.

With effect from 28 July 2014. paragraph 276ADE(1)(vi) will read as follows:

“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’.”

An applicant will now be required to demonstrate that there will be ‘very significant obstacles to the applicant’s integration into the country’ to which they will be returned. This is likely to be a more difficult test to satisfy, particularly following the interpretation of ‘ties’ by the Upper Tribunal in Ogundimu.

The term ‘very significant obstacles’ closely resembles the terminology ‘insurmountable obstacles’ which appears in section EX.1 (the human rights exception) of Appendix FM of the Immigration Rules. This provision has itself been the subject of much judicial debate and is itself subject to a new definition from 28 July 2014. Statement of Changes HC 532 introduces a new EX.2. in the following terms:

“EX.2. For the purposes of paragraph EX.1.(b) “insurmountable obstacles” means the very significant difficulties which would be faced by the applicant or their partner in continuing their family life together outside the UK and which could not be overcome or would entail very serious hardship for the applicant or their partner.”

If you would like further advice regarding an application for leave to remain on the ground of private or family life, or any other category of the Immigration Rules then please contact our immigration barristers and lawyers in Covent Garden, London on 0203 617 9173 or email info@richmondchambers.com.