Hi {name}

I hope everyone enjoyed the recent bank holiday weekend and basked in the glorious sunny weather. As you may have guessed I am a sun worshipper and anytime there is the chance of sun, I love sitting outside with a good book.
A lot has been going on in the world of Immigration law, particular attention being lent to individuals who entered the UK from the Commonwealth countries. Although the media concentrated on the Caribbean community, I do not think this problem is isolated and it is likely in the coming months individuals from other Commonwealth countries will make the headlines too.

The media has also slightly misrepresented the Governments position on the Windrush Generation and implies that individuals merely need to confirm their name and date of birth and they will qualify for a British passport. This is not quite the case and not everyone qualifies for British passports. Some may have to apply for Indefinite leave to remain before being granted the opportunity to apply for Naturalisation and subsequently securing a British passport. There have also been key changes to those applying under the family route and in particular individuals applying on the basis of their child having been resident in the UK for seven years or they have a British child.

All the best Narinder

Commonwealth citizens (known as Windrush cases)

The Windrush generation applies to Commonwealth citizens who are long-term residents of the UK and do not have documents to demonstrate their status.

Legal background

Recent changes to the law mean that if you wish to work, rent property or have access to benefits and services in the UK then you will need documents to demonstrate your right to be in the UK. The government believes this is a proportionate measure to maintain effective immigration control.

They recognise that this is causing problems for some people who lived in the UK for most of their lives. I did mention the need to secure up to date identification with the correct status endorsement in one of my previous newsletters.

 

Check your status to remain in the UK

If you have lived in the UK permanently since before 1973 and have not been away for long periods, more than two years in any one period and no longer than 90 days in any one year, in the last 30 years, you have the right to be here. If you came to the UK during the 1970s but after 1 January 1973 then you are not likely to have an automatic right to be here. However, you may be allowed to stay here permanently.

 

If you need help with getting hold of documentation that will prove how long you have lived here continuously, or an application to stay here, or if you have general questions about your status, then the Home Office has set up a dedicated unit at the Home Office. This team aims to resolve all cases within 2 weeks of all of the information being pulled together.

 

Freephone: 0800 678 1925

Monday to Saturday 9am to 5pm

Sunday 10am to 4pm

Email:commonwealthtaskforce@homeoffice.gsi.gov.uk

 

Evidence to support your application to stay in the UK

The Home Office understands that many people would not have documents that are over 40 years old. But you should send as much information as possible to the Home Office in support of your application. The Home Office will accept all sorts of documentation to help them build a picture of your life in the UK including the following;

 

where you went to school and studied

where you’ve worked

if you have family here

where you’ve lived during your time in the UK

Documents that can help support your application include:

exam certificates

employment records

your National Insurance number

birth and marriage certificates

bills and letters

 

Home Secretary statement to Parliament (April 2018)

On 23 April 2018 the Home Secretary, Amber Rudd, made a statement to Parliament about new measures to establish a permanent and sustainable solution for members of the Windrush generation who have been in the country for decades but found themselves unable to evidence their legal right to remain in the UK.

 

Amber Rudd announced that the Home Office would:

·         waive the citizenship fee for anyone in the Windrush generation who wishes to apply for citizenship – this applies to those who have no current documentation, and also to those who have it

·         waive the requirement to carry out a Knowledge of Language and Life in the UK test

·         waive the fee for the children of the Windrush generation who are in the UK who need to apply for naturalisation

·         ensure that those who made their lives here but have now retired to their country of origin, are able to come back to the UK – the cost of any fees associated with this process will be waived

·         be setting up a new scheme to compensate people who have suffered loss – this will be run by an independent person

·         establish a new customer contact centre, so anyone who is struggling to navigate the many different immigration routes can speak to a person and get appropriate advice

·         ensure that people who arrived after 1973 but before 1988 can also access the dedicated Windrush team so they can access the support and assistance needed to establish their claim to be here legally

 

So anyone who has entered and lived in the UK before the 1st January 1973 has an automatic right to live in the UK and apply for a British passport. Anyone who arrived after the 1st January 1973 is still like to have a right to reside in the UK but this right is not an automatic one and it is likely they will need to secure leave to remain indefinite prior to being able to secure a British passport.

New Guidance on family and private life applications

 

On the 23rd February 2018 the Home Office issued new guidance on dealing with applications for leave to remain on the basis of family life as a partner or parent or on the basis of private life on the ten-year route to settlement. The Home Office did not make a lot of noise about the changes but the impact is huge for individuals.

 

Non-British children with 7+ years of residence

Both the current and the previous guidance say that the longer a child has resided in the UK, the more the balance will begin to shift towards it being unreasonable to expect the child to leave the UK. Strong reasons will be required in order to refuse a case where the outcome will be removal of a child with continuous UK residence of seven years or more.

 

The new guidance does give examples of when those strong reasons may arise. In particular, strong reasons may arise where the parents have “deliberately sought to circumvent immigration control or abuse the immigration process. However the child’s best interests may outweigh the public interest in maintaining effective immigration control, even where the parents have been guilty of deliberately seeking to circumvent the latter or abuse the immigration process.

 

The new guidance, unlike the old, also says that it may be appropriate to refuse to grant leave to a parent or primary carer where their conduct gives rise to public interest considerations of such weight as to justify their removal, and where the child who has been resident here for seven years or more could remain in the UK with another parent or alternative primary carer. In this respect, the guidance is similar to what is said about when it will be reasonable for a British child to leave the UK. It insists on the possibility of a child remaining with a different person than the applicant.

 

Insurmountable obstacles
The guidance gives a more extensive definition of what amounts to “insurmountable obstacles” in the context of partners of British or settled persons who argue that there would be insurmountable obstacles to family life with that partner continuing outside the UK.

 

The factors to take into consideration remain the same:

ability to lawfully enter and stay in another country

serious cultural barriers

impact of a mental or physical disability

serious illness

absence of governance or security in another country

but the guidance further expands on what they mean.

 

Very significant obstacles
Similarly, the new guidance provides a more detailed explanation of what factors, which might amount to “very significant obstacles” in the context of those applying on the basis that there would be very significant obstacles to their integration into the country to which they would have to go if required to leave the UK.

 

Is it reasonable for a British child to leave the UK?
This was probably the biggest change from the old to the new guidance.


The law
Under the Immigration Rules, and in particular paragraph EX1(a), an applicant who has a genuine and subsisting parental relationship with a British child may be granted leave if “taking into account their best interests as a primary consideration, it would not be reasonable to expect the child to leave the UK”.

 

What did the old guidance say?
Save in cases involving criminality, the decision maker must not take a decision in relation to the parent or primary carer of a British Citizen child where the effect of that decision would be to force that British child to leave the EU, regardless of the age of that child.

 

Where a decision to refuse the application would require a parent or primary carer to return to a country outside the EU, the case must always be assessed on the basis that it would be unreasonable to expect a British Citizen child to leave the EU with that parent or primary carer.

In such cases it will usually be appropriate to grant leave to the parent or primary carer, to enable them to remain in the UK with the child, provided that there is satisfactory evidence of a genuine and subsisting parental relationship.

 

What has changed?
The new guidance inserts a two-part test, whereby a decision maker must first determine whether the departure of the non-EEA national parent or carer would result in the child being required to leave the UK. Only if that test is met, the decision maker must go on to consider whether it is reasonable to expect the child to leave the UK.

 

To determine whether the departure of the non-EEA national parent would result in the child being required to leave the UK, the guidance says that

this will not be the case where, in practice, the child will, or is likely to, continue to live in the UK with another parent or primary carer. This is likely to be the case where for example:

 

the child does not live with the applicant

the child’s parents are not living together on a permanent basis because the applicant parent has work or other commitments which require them to live apart from their partner and child

the child’s other parent lives in the UK and the applicant parent has been here as a visitor and therefore undertook to leave the UK at the end of their visit as a condition of their visit visa or leave to enter

 

This change will inevitable make it harder for a parent who, may not live with their child but has regular contact and likely overnight stay with the child more difficult to prove their case, where the applicant’s departure would not force the child to have to leave the UK. Clearly if the British child is forced to leave the UK then the decision maker would need to, in theory, grant the applicant leave to remain.

 

That said the fact that a child would not be forced to leave the UK is not the end of the story. The guidance makes it clear that where there is a genuine and subsisting parental relationship between the applicant and the child, the removal of the applicant may still disrupt their relationship with that child. For that reason, the decision maker will still need to consider whether, in the round, removal of the applicant is appropriate in light of all the circumstances of the case, taking into account the best interests of the child as a primary consideration and the impact on the child of the applicant’s departure from the UK. If it is considered that refusal would lead to unjustifiably harsh consequences for the applicant, the child or their family, leave will fall to be granted on the basis of exceptional circumstances.

 

The changes may not seem significant, however having experience of dealing with these cases; the Home Office has just raised the bar on the evidential requirements for these types of applications. Time will tell what impact this will have on the outcome of cases lodged after these changes were brought in. I have a few cases outstanding myself.

Change your subscription    |    View online
BRPartners Immigration Advice & Services
Head office Isha House 8 Wrotham Gravesend Kent DA11 0PA 
London Office Eastside Kings Cross Station London N1C 4AX
t.01474357091 m.07716054420 e.office@brpartners.co.uk
www.brpartners.co.uk