Immigration applications: Article 8 (private life and long residence)

The right to respect for private and family life derives from Article 8 of the European Convention on Human Rights. Since 9 July 2012, the Home Office has sought to define the right to private life within the parameters of the Immigration Rules.

Under these rules, an individual will be entitled to a grant of leave to remain under this rule if they:

• Have lived continuously in the UK for at least 20 years;
• are a child (under 18), have lived continuously in the UK for at least seven years and it would not be reasonable to expect them to leave the UK;
• are over 18 but under 25 years old and have spent at least half their life continuously in the UK; or
• are over 18, have lived continuously in the UK for less than 20 years but there would be significant obstacles to their integration into the country to which they would have to go if require to leave the UK.

Given the difference in criteria under the Immigration Rules for those aged under 18 and those who are 18 or older, it is vital that children are assisted to regularise their status at the earliest opportunity. If you are working with a child who is undocumented or whose leave to remain is due to come to an end, it is essential that they access legal advice as soon as possible.

The evidence that will need to be provided to prove long residence is significant – individuals will need to provide evidence of residence for each year they have lived in the UK.

Professionals working with a migrant child or family may be asked to provide a report, letter or information relating to the best interests of that child in support of an application. It is important that they provide as much relevant information as possible, including details of the child’s family and private life in the UK; the support that child receives; links and involvement in school/religious organisations/groups; and what the professional considers to be in the child’s best interests.

The changes to the Immigration Rules in July 2012 also introduced new suitability requirements: rules that an individual must not meet if they wish to be granted leave to remain under private life and long residence. These are split into mandatory refusals and discretionary refusals.

An individual will be refused leave to remain if:

• they are currently the subject of a deportation order;
• they have been convicted of an offence for which they have been sentenced to prison for at least four years;
• they have been convicted of an offence for which they have been sentenced to imprisonment for less than four years but at least 12 months (unless 10 years have passed since the end of the sentence);
• they have been convicted of an offence for which they have been sentenced to imprisonment for less than 12 months (unless five years have passed since the end of the sentence);
• their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law;
• their presence in the UK is not conducive to the public good because their conduct, convictions, character, associations, or other reasons, make it undesirable to allow them to remain in the UK; and/or
• they have failed, without reasonable excuse, to-
  1. attend an interview;
  2. provide information;
  3. provide physical data; or
  4. undergo a medical examination or provide a medical report.

An individual may be refused leave to remain if:

• false information, representations or documents have been submitted in relation to the application (with or without their knowledge);
• there has been a failure to disclose material facts in relation to the application;
• their outstanding NHS charges have a total value of at least £500 (previously £1,000);
• a maintenance and accommodation undertaking has been requested but not provided; and/or
• they or their partner has not complied with the investigation of their proposed marriage or civil partnership.

One of the most frequently misunderstood rules relates to children who have lived in the UK for seven years. It is important to note that there is no automatic grant of leave to remain simply because a child has lived in the UK for seven years. The test is seven years residence and showing that it would unreasonable to expect the child to leave the UK.

The Home Office is under a duty to ensure that the best interests of a child are taken into account when making any immigration decision. Any private life application made under the seven year rule will invoke this duty and may be of particular importance for any assessment of whether it would be reasonable for a child to leave the UK.

What is ‘reasonable’ in the context of a child being removed from the UK is a subject of much debate. The Home Office guidance provides information as to how a caseworker should consider best interests of a child in the context of private life cases. The Home Office caseworker is therefore likely to consider the following when looking at an application under the seven year rule:

• Whether there would be a significant risk to the child’s health
• Whether the child would be leaving the UK with their parents – the Home Office consider that it is generally in a child’s best interests to remain with their parents and that it will generally be reasonable to expect a child to leave the UK with their parents, particularly if the parents have no right to remain in the UK
• The extent of wider family ties in the UK
• Whether the child is likely to be able to (re)integrate readily into life in another country (i.e. family or social ties, cultural ties, language)
• Any country specific information, including as contained in relevant country guidance
• Other specific factors raised by or on behalf of the child