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Private Life And Human Rights

Family and Private Life Routes

An Applicant may be eligible to remain in the UK on the basis of their family life in the UK with a family member. The family member or partner can either be a British Citizen, be settled in the UK or be a partner who has asylum or humanitarian protection in the UK.

An Applicant may also be eligible to remain with in the UK as the parent of a child if the child is not British but has lived in the UK for at least 7 years.

This is provided for under Appendix FM of the Immigration Rules via two routes to settlement:

5- year Routes

The 5-year route as a partner or parent is for Applicants who meet all suitability and eligibility requirements of the Immigration Rules. Applications can be made from overseas or within the UK.

If an Applicant is applying for the partner route, they must prove they meet the English language requirement and that they meet the financial requirement as set out below:

  • £18,600 per year if an Applicant is applying alone
  • £22,400 per year for an Applicant and one child
  • £2,400 per year for each additional child

For further information please visit our “Spouses and Civil Partner Applications” page.

If an Applicant is applying as the parent under the 5-year parent route, their child must be a British citizen or settled in the UK. They must also demonstrate that they have enough money to adequately maintain and accommodate themselves and their dependents (without recourse to public funds). Additionally, they must meet the English language requirement.

5-year route to Settlement

If an application is successful, the Applicant will be given a period of leave to remain for 30 months (2 ½ years).  The Applicant will be permitted to work but would not be permitted to received public funds. Before the expiry of their visa, they will be required to apply for an extension. They will be granted a further 2 ½ upon submitting a successful application.

Once an Applicant has completed 5 years in this route, they will be eligible to apply for settlement provided they meet the requirements.

10- year Route

The 10-year route as a partner or parent is applicable to Applicants who meet all suitability requirements but are unable to meet certain eligibility requirements.

10-year partner Route

An Applicant who is in the UK may be eligible to apply for leave to remain in the UK as the partner of person who is:

  1. a) British or settled in the UK or
  2. b) in the UK with limited leave as a refugee or granted humanitarian protection

In order to qualify for a grant of leave to remain under the 10-year partner route, an Applicant will need to meet the requirements below:

  1. a) both the Applicant and their partner must be present in the UK;
  2. b) the application made must be valid;
  3. c) (i) the Applicant must not fall for refusal under suitability requirements for leave to remain; and

(ii) the Applicant must meet the relationship requirements as set out in the Immigration Rules

10-year parent route

If an Applicant has responsibility for or access to their child following the breakdown of their relationship with their child’s other parent, they may be eligible to apply for leave to remain as the parent of the child.

This route applies to those who either have sole parental responsibility for their child; or are the parent with whom the child normally lives; or do not live with the child but they have direct access in person to the child (this could be via an agreement with the parent or care of the child with whom they currently live with or as ordered by UK court.)

The child who the Applicant is relying on must be:

  1. a) under 18 years of age at the date of the application
  2. b) be living in the UK and
  3. c) is a British Citizen or
  4. d) has lived in the UK for at least a continuous 7 year period preceding the date of the application.

Additionally, the Applicant must demonstrate that it is in the child’s best interest to remain in the UK with the Applicant.

10-year private life route

An Applicant who meets the relevant suitability and eligibility requirements of Appendix FM may be eligible to apply for leave to remain in the UK on the basis of their private life.

The requirements an Applicant would need to be are as follows:

  • The Applicant must have resided continuously in the UK for at least 20 years; or
  • The Applicant must be under the age of 18 years of age and have resided continuously in the UK for at least seven years; or
  • The Applicant must be aged 18 years or above but under 25 years and have spent at least half of their life residing continuously in the UK; or
  • The Applicant must be aged 18 years or above and have resided continuously in the UK for less than 20 years and have no social, cultural or family ties with their country of origin.

10-year route to Settlement

Applications for leave on the 10-year routes to settlement can only be made from within the UK.

If an application is successful, the Applicant will be granted leave to remain for a period of 30 months (2 ½ years). Applicants will be required to extend their visa for a further 30 months on each occasion. Upon completing 120 months, the Applicant will be eligible to apply for indefinite leave to remain in the UK (provided they meet the requirements)

Applicant’s granted under this category are permitted to work and study. However, they are prohibited from receiving public funds.

What happens if I fail to meet the requirements of the Immigration Rules

If an Applicant fails to meet the requirements of the Immigration Rules under the family or private life route, the Home Office will be under duty to assess any exceptional circumstance on the basis of the Article 8. Any leave granted would be granted outside of the Immigration Rules.

Article 8 of the European Convention on Human Rights

Under Article 8 of the ECHR everyone has a right to respect for their private and family life.  However, this right is not a qualified right. It can be lawful to interfere with the exercise of such right where it is considered that it would be proportional to do so taking into account public interest considerations. Article 8 of the ECHR provides:

Article 8(1)

Everyone has the right to respect for his private and family life, his home and his correspondence.

Article 8 (2)

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Guidance as to how an Applicant can demonstrate that they should remain in the UK on the basis of their Article 8 rights is set out in caselaw. It provides that an Applicant should demonstrate the following:

  • There will be an interference with the exercise of the Applicant’s right to respect for his private or family life and that interference would amount to a breach of Article 8
  • That any such interference would be unlawful
  • That this is interference is not necessary taking into consideration public interest matters
  • That the interference would not be proportionate

How we can help

Our experienced lawyers can help Applicants ensure their applications are complete and valid. They can assist Applicants:

  • Make an initial or extension application where they do not qualify for indefinite leave to remain
  • Challenge decisions by way of Administrative Review or other appeal process

We will assist by:

  • obtaining the complete facts of a case
  • collecting relevant documents
  • advising the best solutions
  • using our expertise to undertake one-to-one interview preparation
  • preparing the application (including completion of forms)
  • preparing covering submissions
  • submitting the application(s) to the relevant authority
  • communicating with the relevant authority until a decision is made
  • advising about rights and entitlements following a decision an application
  • providing follow up support and services

CONTACT US

DESCARTES SOLICITORS is recognised as one of the leading multi-practice firms in the UK. Our specialist team can assist Applicants with properly making an application ensuring all the required documentation and information is provided.

For advice and assistance with an application or appeal, please contact our lawyers on 0208 995 3556/0844 556 9901 or e-mail info@descartessolicitors.co.uk.