The Home Office’s new “early ILR concession”

28 October 2021

Progressive developments in immigration law have become a rare phenomenon, so the Home Office’s new policy – which halves the route to settlement for certain young people who have resided in the UK for more than half of their lives – is welcome news.

Oliver Oldman recently joined our immigration team as an associate focussing on asylum, human rights, detention and deportation matters.

What is the policy?

On 25 October 2021, the Home Office introduced a new concession that creates the possibility for those aged between 18 and 24 inclusive to be granted indefinite leave to remain after having completed just 5 years’ limited leave in the UK.  This is in recognition of the fact that it may be disproportionate to apply the public interest factors underpinning the 10 year settlement policy (described as “the need to serve a longer probationary period before qualifying for settlement, and the principle of encouraging lawful compliance”) to those who were either born in the UK or entered as children and were granted limited leave, who “cannot be considered responsible for any previous non-compliance with immigration laws” and who are now “fully integrated into society in the UK.”

Under the policy, an individual will only be eligible for “early” indefinite leave to remain where they meet the following criteria at the point of applying:

  • They must be aged 18 or above and under 25, and must have spent at least half of their life living continuously in the UK (discounting periods of imprisonment)
  • They must have either been born in or entered the UK as a child
  • They must have held limited leave to remain in the UK for five years
  • They must be eligible for further leave to remain under paragraph 276ADE(1) and must have made an application under those Rules

Once this initial eligibility screening has been satisfied, the decision-maker will then need to consider whether it will be “appropriate” (or “proportionate,” as it is alternatively described in the policy) to grant indefinite leave to remain. When undertaking this assessment, the policy directs the decision-maker to take into account a specific but inexhaustive list of factors:

  • The person’s age when they arrived in the UK
  • The length of their residence in the UK (including unlawful residence)
  • The strength of their connections and integration to the UK
  • Whether unlawful residence in the past was the result of non-compliance on the part of the applicant or their parent/guardian whilst the applicant was under the age of 18
  • Efforts made to engage with the Home Office and regularise status
  • Any leave currently held and length of continuous lawful leave
  • Any period of any continuous leave held in the past
  • Whether (and the extent to which) limited leave to remain will have a detrimental impact on the person’s health or welfare

There are some notable ambiguities created by the wording of the concession.

First, while the Home Office’s explanatory background to the policy indicates that its intention is to provide a route to eligible applicants at the conclusion of completing 5 years leave to remain, there is no express mention of the need for the applicant to hold valid leave at the point of applying, although it might be inferred by the need to demonstrate eligibility for “further” leave to remain under paragraph 276ADE(1). This may leave open the possibility for applications by those who have completed 5 years leave to remain in the UK while they were children but have since overstayed (with the recent overstaying and reasoning no doubt informing the decision-maker’s proportionality assessment).

Similarly, there appears to be no express requirement that the 5 years leave must have been held continuously, which may leave open the possibility for applications by those who have held 5 years limited leave in total, comprised of periods separated by overstaying.

Who will benefit from the policy?

The concession is targeted at young adults who were either born in the UK or were brought here as children, and were then granted a period of limited leave – on a 10 year route to settlement - in order to regularise their status. This most straightforwardly includes those who were granted leave under one of the private life categories in Part 7 of the Immigration Rules, under which applicants are granted 30 months leave to remain and must usually complete 10 years in the UK on private life grounds before becoming eligible to apply for indefinite leave to remain. It should also apply to those who have been granted discretionary leave outside of the Immigration Rules.

The concession also ought to apply to certain young adults who were granted limited leave on the 10 year route to settlement under Appendix FM as dependents on family members. The policy explicitly does not apply to young adults when the family member on whom they are dependent is eligible to apply under the Appendix FM 10 year route, since “they can be expected to continue to be granted in line with their parent, guardian or family member on who [sic] they are dependent.” This means that the concession should be triggered by applicants who have completed 5 years leave to remain as a dependent on the 10 year route under Appendix FM; are now aged between 18 and 24; have resided in the UK for more than half of their lives; and where either they are no longer dependent on the family member who was the primary applicant, or that family member is no longer eligible (or is no longer applying) for further leave under Appendix FM.

In general, the concession should foster greater stability for the lives of many affected young people and brings Home Office policy closer in line with the established case law relating to the best interests of children, and in particular with the “sins of the parents” principle outlined by the Supreme Court in Zoumbas v SSHD [2013] UKSC 74 (that a child must not be blamed for matters for which he or she is not responsible, such as the conduct of a parent).

FURTHER INFORMATI0N

For further information on any issues raised in this blog, please contact a member of our Immigration team.

 

ABOUT THE AUTHOR

Oliver Oldman joined Kingsley Napley in September 2021 as an associate in the Immigration Team and International Protection Group. He has been practising immigration law since 2012, with a particular focus on asylum, human rights, detention and deportation matters. He has extensive experience of representing clients in their appeals from the First-tier Tribunal (IAC) up to the Court of Appeal and has brought a range of judicial review challenges against Home Office decisions. 

 

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