Statement of changes HC 1118: new family and private life rules - PART 3

On 9 July 2022, the first people granted permission to stay under the ten-year private and family life routes will start to qualify for indefinite leave to remain.

Now, just in time for that anniversary, the Home Office has introduced what it describes as a “simplified” approach to such cases. 

This article is intended to be a non-exhaustive overview of the most significant changes to family/private life in statement of changes HC 1118. All the new rules discussed below apply to applications made on or after 20 June 2022.

Private life

The new Appendix Private Life retains the four grounds on which permission can be granted based on private life. As reminder, these are:

• be a child resident in the UK for at least seven years who can’t reasonably be expected to leave (‘seven-year children’)
• be aged 18 to 24 and resident here for at least half their life (‘young adults’)
• be resident here for more than 20 years
• face very significant obstacles to integration in their country of return

As before, an asylum claimant who the Home Office wishes to remove to a “safe third country” can’t rely on obstacles to integration.

Until now, successful applicants on private life grounds have been granted 30 months’ permission to stay, following which they must reapply if they wish to extend their stay. Appendix Private Life now allows young adults and seven-year children to choose whether to apply for 30 months’ or 60 months’ permission; there are no additional requirements for the latter, and presumably the only difference will be the application fee. 

Perhaps the most significant changes relate to the qualifying period for indefinite leave to remain. Previously, applicants had to complete ten years on the private life route before they could get ILR. Appendix Private Life changes that.

Most notably, a child who was born in the UK can apply for ILR immediately after spending the first seven years of their life here – even if they have never had any leave to remain. This change is welcome, as it avoids the need for children in this position repeatedly to reapply for extensions. However, they must still show that it would not be reasonable to expect them to leave the UK. Where neither parent has an independent right to remain, this will not necessarily be a straightforward task (see NA (Bangladesh & Others v Secretary of State for the Home Department [2021] EWCA Civ 953).

For seven-year children who weren’t born in the UK, there is a new accelerated route enabling them to get ILR after five years’ leave instead of ten.

Everyone else on the private life route still needs to complete ten years after being granted permission before they can get ILR. But in a change from the previous position, those ten years need not all have been spent on the private life route: permission granted under Appendix FM, the ten-year family route or Article 8 outside the Rules can now count towards the qualifying period. 

Alongside these (relatively) generous provisions, there are some new, stricter, suitability requirements. A prison sentence of at least 12 months now prevents a person from ever getting ILR on the private life route (previously they could do so if 15 years had passed since the end of the sentence). People in this position are presumably expected to make do with endless extensions.

A prison sentence of less than 12 months prevents a grant of ILR for the first five years after the sentence is completed. It also disqualifies a child or young adult from obtaining ILR on the accelerated five-year route. The same applies where the applicant has been involved in a sham marriage or civil partnership, practised deception or breached conditions, or where they have an outstanding litigation or NHS debt.

Finally, Appendix Private Life creates a new category called “child born in the UK to a person on the Private Life route”. The name is self-explanatory. Limited and indefinite leave will be granted in line with the parent.

Family life

The two new family life appendices only affect people seeking ILR on the ten-year family route. Appendix FM still applies to those on the five-year route.

Appendix Settlement Family Life introduces a new “continuous residence requirement” for ILR as a partner or parent on the ten-year route. Where previously there was no need for applicants to have spent a certain amount of time physically in the UK, now they are limited to a maximum of 180 days’ absence in any 12-month period. This appears to move the goalposts significantly for people who have never previously had to worry about the length of their time abroad.

It is mitigated somewhat by an exception for absences due to work, study, or supporting family overseas as long as the UK remains the applicant’s place of permanent residence and they maintain a family life here. Other exceptions include time spent out of the UK due to a pandemic or life-threatening illness.

Additionally, absences pre-dating the new appendix will be disregarded if they were followed by a grant of permission on private or family life grounds. In practice, this means that the first round of ten-year route settlement applicants need only worry about excess absences during their last period of permission; they may as a result need to obtain a further extension, but won’t have to start the ten-year qualification period all over again.

As mentioned above, applicants can now combine periods of permission in different private and family routes (including Appendix FM) in order to reach the requisite ten-year period for settlement. They also face tougher suitability requirements, as summarised above.

Conclusions

The explanatory notes say that the HC 1118 changes “represent a further step in the Home Office commitment to simplify the Immigration Rules”. It is questionable whether the creation of multiple new appendices achieves this.

On the substance, some of the private and family life amendments are undoubtedly positive – particularly those allowing earlier settlement for seven-year children and young adults – although it remains to be seen whether they will in practice result in a fairer and more consistent approach to these cases.