Human Rights Application
Individuals who have successfully set up private and family life in the UK are entitled to apply to the Home Office for consent to reside in the UK under the private life factor of Article 8 of the European Convention on Human Rights (ECHR).
Immigration rules have metamorphosed since the 9th of July, 2012 to the era whereby any claim for Article 8 of the European Convention on Human Rights (ECHR) is decided under the immigration rules; unlike the past where all applications made under Article 8 were considered by the Home Office outside the Immigration Rules and under the Discretionary Leave policy of the Home Office.
In circumstance where the case is unique and its exceptionality test is satisfactory, the Home Office is expected to consider the Article 8 claims outside the Rules after it has been considered under the Immigration Rules. It is indeed still a possibility for applicants to fail in Article 8 claim under the Immigration Rule and yet succeed tremendously outside the Immigration Rules as a result of the exceptional compassionate circumstance surrounding the human rights application.
Various forms through which the consent to reside or extend residence under Article 8 of the European Convention on Human Rights (ECHR) are in existence, Such applications include the following:
- 20 years long residence (10 years route to settle)
An individual who has sustained residence in the UK for 20 years within or outside the law can make a formal application seeking approval to remain in the UK for 30 months in accordance to paragraph 276ADE of the Immigration Rule. The applicant can apply for an extension for another 30 months before the cessation of the previously held leave to remain. The applicant is authorized to apply for Indefinite Leave to remain in the UK if they have successfully elapsed 10 years of residency under this category. The inceptive applications for extension under this category are to be made using application form FLR (FP) and an application for ILR using application form SET (FP).
- 7 years continuous residence in the UK (child)
Paragraph 276ADE (1)(iv) of the Immigration Rules requires that an applicant that is under the age of 18 years, who must have lived in the UK for a minimum of 7 years continuously (excluding any period of incarceration), is not reasonably expected to leave the UK. This gives room to the fact that a child that suites this status can apply for “leave to remain” on the basis of private life.
- Majority of Life Spent in the UK (Age 18 - 25)
An individual who has spent greater part of his life in the UK, who is in the age range of over 18 years and less than 25 years; is entitled to apply to the Home Office for “leave to remain” in the UK on the basis of private life. This is further possible if he can exhibit proof that he has spent at least half of his life residing in the UK. The application thus is made using application form FLR (FP); after which the applicant is granted “leave to remain” for 30 months under the 10 years route if the application is successful.
- Individuals over 18 years who have continuously resided and lived for less than 20 years in the UK; can apply to the Home Office in order to receive “leave to remain” on the ground of private life in the UK, on the condition that there is a tendency of challenges which he will encounter during the process of coalescing into the country of origin, which he would have to go to if compelled to leave the UK. Only applicants with unique cases have been able to succeed in these circumstances; as it is difficult to meet the conditions of proving that integration into the country of origin would be marred by obstacles. Applications in this category is also made by utilizing the FLR (FP) application form, which when successful grants the applicant approval to remain in the UK for 30 months under the 10 years route to settlement.
Family Life Applications
An individual who is married to or is in civil partnership with a person presently resided in the UK or who is a British Citizen, can apply to the UK Home Office for “leave to remain” in the UK on the basis of family life in the UK with his/her partner. The application under this category is also 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. However, it is important to note that the success of this application is dependent on some important factors. This includes;
- That the applicant has an enduring and authentic relationship with his/her spouse in the UK and that they face challenges too great to overcome in family life commencing outside the UK.
- That the applicant has a good parental affinity with a his/her child residing in the UK, who might also be a British Citizen
Human Rights Lawyers London