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Human Rights. Leave To Remain Outside the Immigration Rules.
Human rights are the basic rights and freedom that belong to everyone in the world, which last for the lifetime of each individual and can never be removed, save in the event of that person breaking the law or where national security interests prevail.
One of these rights is that enabling an individual to have an established family life respected and to be able to maintain family relationships.
This right is protected by a number of international human rights instruments including, in the UK, the Human Rights Act 1988 which gives effect to the rights set out in the European Convention on Human Rights (‘ECHR’).
Article 8 of ECHR protects the right to respect for a family and private life, home and correspondence.
What Is Family Life and Private Life?
Family life consists of relationships between husband and wife as well as unmarried couples, parents and their children, including illegitimate and adopted children and siblings.
Private life covers the right to privacy, without the interference by the state in matters such as sexuality, personal identity, dress, work, studies and storage pf personal data.
A person who has established a private and family life in the UK can apply to the Home Office for Indefinite Leave to Remain or Further Leave to Remain in the UK under Article 8 by way of various routes.
However, Article 8 is not an absolute right, the state has the right to exercise immigration control and may interfere unless such interference would not be proportionate.
10 Years Route Settlement
After a period of ten years legal settlement in the UK, indefinite leave to remain may be sought by virtue of one of the following routes:
Family Life with a Partner
A person who is the partner of a person present and settled in the UK, or is a British Citizen, can apply for leave to remain in the UK on the grounds of his/her family life in the UK with such partner.
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It must be proven that there has existed a genuine subsisting relationship with such a person for at least two years and that there are insurmountable obstacles to that relationship continuing elsewhere arising from, for example, the partner’s ties to the UK arising from home, work, family or children in the UK.
Family Life as a Parent
A person who is the parent of a child, who is present and settled in the UK or is a British Citizen, can apply for leave to remain in the UK on the grounds of his/her life with a child.
The parent must play an active role in the child’s upbringing and intend to continue to do so, or, they must have sole responsibility for a child, or regular contact with a child, if that child lives with their other parent.
The child’s best interests are fundamental.
A Person who is aged over 18 years and under 25 and has spent a majority of their life in the UK
Such a person can apply for leave to remain on the basis of his/her private life if he/she can show that he/she has spent at least half of their life living continuously in the UK.
A Person who is aged over of 18 years and has lived less than 20 years in the UK
Such a person can apply for leave to remain if they can show there would very significant obstacles to his/her integration (such as the absence of social, cultural or family ties) into their country of origin, if they left the UK.
20 years Route Settlement
There are those people who, for a number of reasons, may not be able to seek indefinite leave to remain by following the 10 years route described above.
In such circumstances, it is possible for a person who has lived in the UK continuously for 20 years, whether lawfully or unlawfully, to apply for indefinite leave to remain.
Indefinite Leave To Remain
A Child who has lived in the UK for 7 years continuously
A child who has lived in the UK for 7 years continuously and is under 18 can apply for leave to remain in the UK.
The Home Office will normally accept that a child is well settled, and has made strong family and social ties within the UK.
Suitability And Eligibility
In all applications the Home Office will assess the required criteria and an applicant will not be considered suitable for leave to remain to be granted if such applicant:
- is subject to a deportation order
- has committed a criminal offence, been in prison for a period of twelve months and remaining would not be conducive to the public good
- has failed to provide requested evidence and
- false documents have been submitted or false representations made at any time
How Can We Help?
Applications to Remain on Human Rights Grounds are extremely complicated with each case being judged on its own merits.
Accordingly, it is imperative that legal advice is sought before making any such application.
If an application is declined with the results that the Applicant or a family member may be separated in a country where they have no support or ties, then grounds for an Appeal may exist.
Following the 10 years route to settlement entails the submission of five separate applications within that period each occasion requiring the payment of further fees.
With the rising cost of the fees payable upon each application, it is imperative that expert professional advice is sought before submitting any application to ensure that each application is correctly prepared to avoid the forfeiture of fees which may arise due to error.
All applications must be made on the correct forms which are very detailed, vary from time to time and each application must accompanied by full supporting documentation.
Failure to submit a correct application could result in a Notice of Refusal being issued and the resultant serious consequences.
At Kangs Solicitors we have an experienced team of immigration solicitors who advise and assist clients with immigration status issues in the UK on a daily basis.
We have a proven track record of successfully advising and guiding clients through the immigration application and appeals process.
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