Human Rights & Private Life
Before 9 July 2012, all the applications made under Article 8 of the European Convention on Human Rights (ECHR) were considered by the Home Office outside the Immigration Rules and under the Discretionary Leave policy of the Home Office. However, Immigration Rules were changed and implemented on 9 July 2012 whereby any claim for Article 8 is now decided under the Immigration Rules. The relevant paragraphs of the Immigration Rules for the consideration of such Article 8 claims include paragraph 276ADE to decide the private life factor of the Article 8 claim and Appendix FM to decide the family life of the Article 8 claim.
There are various types of applications that can be made by applicants under Article 8 of the ECHR include the following:
Private Life in the UK
The Private life applications are normally made by using application form FLR (FP) and if the application is successful, permission to stay will be granted for 30 months under 10 years route to settlement.
20 YEARS LONG RESIDENCE (10 YEARS ROUTE TO SETTLEMENT)
A person who has lived in the UK continuously for 20 years in the UK whether lawfully or unlawfully can apply for permission to stay in the UK for 30 months under paragraph 276ADE of the Immigration Rules. Before the expiry of such leave to remain, the application can apply for extension of stay for another 30 months leave to remain. After completion of 10 years residence under this category, the applicant is entitled to apply for Indefinite Leave to Remain in the UK. The initial application and applications for extension of stay under this category are made using application form FLR (FP) and an application for ILR using application form SET (FP).
CHILD WHO HAS LIVED IN THE UK FOR 7 YEARS CONTINUOUSLY
A child who has lived in the UK for 7 years continuously can apply for leave to remain on the basis of private life. Paragraph 276ADE(1)(iv) requires that the applicant must be under the age of 18 years and must have lived continuously in the UK for at least 7 years (discounting any period of imprisonment) and it should not be reasonable to expect the child to leave the UK.
A PERSON WHO IS OVER THE AGE OF 18 AND UNDER THE AGE OF 25 AND HAS SPENT MAJORITY OF HIS LIFE IN THE UK
A person who is over the age of 18 and under the age of 25 can apply for leave to remain on the basis of his private life if he can show that he has spent at least half of his life living continuously in the UK. The application is made using application form FLR (FP) and if the application is successful, the applicant is granted leave to remain for 30 months under the 10 years route to settlement.
A PERSON WHO IS OVER THE AGE OF 18 AND HAS LIVED LESS THAN 20 YEARS IN THE UK BUT THERE WOULD BE VERY SIGNIFICANT OBSTACLES TO HIS COUNTRY OF ORIGIN
A person who is over the age of 18 and has lived continuously in the UK for less than 20 years can apply for leave to remain on the basis of his private life in the UK if he can show that there would be very significant obstacles to his integration into the country to which he would have to go if required to leave the UK. The threshold is very high for someone to satisfy the requirement of very significant obstacles to his integration into his country of origin. Only the applicant with exceptional circumstances is likely to succeed under this category.
Family Life in the UK
Following are the various applications which a person can submit to the Home Office on the basis of his family life in the UK:
FAMILY LIFE WITH PARTNER:
A person who is partner of a person present and settled in the UK or of a British Citizen can apply for leave to remain in the UK on the grounds of his family life in the UK with his partner. The application is made using application form FLR (FP) and if the application is successful, the applicant is granted leave to remain in the UK for 30 months under the 10 years route to settlement. The important factor for such application to be successful is that either
- the applicant has a parental relationship with a child who is settled in the UK or is British, or
- the applicant has a genuine and subsisting relationship with his UK partner and there are insurmountable obstacles to family life with that partner continuing outside the UK.
Further Leave to Remain (HRO) & (IR)
For any other circumstances other than private & family life mentioned above, you must apply for grant of leave not covered by the immigration rules and any other forms using the form FLR(HRO). You may also use FLR (IR) for some other routes.
You may apply for the following categories:
- Visitors (except Approved Destination Status & Permitted Paid Engagements visitors)
- UK ancestry
- Domestic worker in a private household
- Domestic worker who is a victim of slavery or human trafficking • Dependant of a person who has limited leave to enter or remain in the UK other than under the points based system • Parent of a Tier 4 (child) student
- Discretionary Leave (DL) where the applicant has previously been granted a period of DL but has not previously been refused asylum or granted less than four years Exceptional Leave • Relevant Civilian Employee
- Member of an Armed Forces who is not exempt from immigration control
- A dependant of a member of an armed force (not HM Forces who should complete FLR(AF)) who is exempt from immigration control under the Immigration Act 1971
- Locally engaged staff of a Diplomatic Mission
- Other purposes or reasons not covered by other application forms.
Please call our expert Immigration team on 0330 058 3929 for more details.