Waiting times for indefinite leave to remain (ILR) have been halved from 10 years to 5 years for some groups of young people, in a major new concession announced by the Home Office.
The new policy, published in response to litigation by campaigners, will benefit young people between the ages of 18 and 25 who have lived in the UK for more than half their lives and who already have permission to stay here based on their length of residence.
The concession applies to paragraph 276ADE(1) of the Immigration Rules, which allows people living in the UK without leave to regularise their position based on their “private life” – which amounts to a simple calculation of how long they have lived in this country. Children under 18 must show they have been here for 7 years, those aged 26 and upwards need a period of 20 years, while those aged 18-25 must have lived here for half their lives.
Until now, a grant of leave in this route lasted 2.5 years and had to be renewed three more times until qualifying for indefinite leave to remain (ILR) after 10 years. The Home Office justification for this drawn-out process has been that migrants who have spent time in the UK ‘unlawfully’ “should serve a probationary period of limited leave”, as “settlement in the UK is a privilege, not an automatic entitlement”.
Fair enough, you might think – except for the astronomical cost involved, which including the immigration health surcharge and fees comes in at over £2,600 each time. Requesting a waiver of this fee is long, complicated and extremely intrusive, requiring applicants to show they are or would be destitute if they had to pay.
However, the new concession will allow young people who have already completed 5 years of residence in this route to request a grant of ILR based on the specific circumstances of their case.
This development is intended to reflect the fact that young adults who were born in the UK or who entered as children are not responsible for actions taken by their carers or parents when they were minors. In other words, because they are not to “blame”, they should not bear the full emotional and financial burden associated with the drawn-out process.
Nevertheless, it is important to note that developments remains a “concession” so far and has not been integrated into the Immigration Rules. This means that at the point of applying, careful, detailed arguments will need to be made explaining why the Home Office should grant ILR rather than a further 2.5 years of leave to remain.
Ultimately, it will be at the Home Office’s discretion whether to grant the applicant ILR or instead give them a further 2.5 years of leave to remain – although the Home Office will have to justify any decision to depart from the concession where it has been raised.
The relevant criteria, as set out in the concession guidance, are that the applicant must:
- Be aged 18 years or above and under 25 years of age and have spent at least half their life living continuously in the UK (discounting any period of imprisonment);
- Have either been born in or entered the UK as a child;
- Have held five years limited leave; and
- Be eligible for further leave to remain under paragraph 276ADE(1) of the Immigration Rules and have made an application under those rules.
This concession could be used either by people who obtained their first grant of leave under the age of 18 (having lived in the UK for at least 7 years) but who are now adults, or by those who obtained their first grant of leave at the age of 18 and over.
However, for now at least, it does not extend either to children under 18 or those aged 26 and over. Those who would have qualified if the concession had been published earlier but who “missed out” and are now too old, may still be able to request the concession be applied on a retrospective basis. This option is not contained out in the concession document but could be worth attempting on the simple basis of natural justice.
The concession marks a major development for young people living in this category and is the most significant change to the “private life” rules since their introduction in 2012.
Our Immigration lawyers have the knowledge and experience to guide you through these challenging times and have been ranked in the Legal 500 for their expertise.
If you are in need of advice or assistance on any of the issues mentioned in this article please contact Karma Hickman Associate Solicitor or another member of our expert Immigration Team on 020 7631 4141 or email immigration@bishopandsewell.co.uk.
The above is correct as at 08 November 2021. The information above may be subject to change as this is a constantly evolving situation.
The content of this note should not be considered legal advice and each matter should be considered on a case-by-case basis.
