Have you overstayed your visa? Do you think you could be an illegal? Are you worried about being removed or deported from the UK? Have you ever been detained by the Home Office or Immigration authorities? Would you like to stay in the UK legally?
If any of the questions above apply to you, then you may be somebody who has no legal status in the UK and therefore needs to regularise their legal status in the UK immediately.
Guide by Ms. Raheela Hussain, solicitor
London 15/10/2014. Many people feel they do not have good grounds to stay in the UK. For example, they have been working illegally, have overstayed their previous visas, or simply do not want to go back to their home country for whatever reason. However, such individuals can still make an application to stay in the UK. This application may ask the Secretary of State to grant them a period of ‘discretionary leave’.
Discretionary Leave is granted outside of the Immigration Rules and often includes claims made on a human rights basis, but it can also be granted in cases where a human rights claim fails.
A discretionary leave application is just that: a person asks the Secretary of State to exercise her discretion in their favour so that they may remain in the UK. Once granted discretionary leave to remain, the person is lawful in the UK and may live here and work/study as any other lawful member of British society.
A good discretionary leave application will seek to argue a person’s circumstances and backgrounds such as their age, length of residence in the UK, strength of connections within the UK, personal history including character, conduct and employment record, domestic circumstances, previous criminal record and nature of any offence for which a person has been convicted, compassionate circumstances and any representations received on the person’s behalf. The Home Office will consider whether the person has ties back in their native country of origin or the country where they would have to go to if returned, and also if this would affect any children of the family.
Where an overstayer/illegal entrant has established a family life in the UK and they have a partner or children, then it will also be possible to argue that discretionary leave to remain is granted as it is in the ‘best interests of the child’. A general legal principal is that where a child has been in the UK for more than 7 years, then the Home Office could consider that removing that child (along with their family members) would be against the best interests of the child. This is because the child will have integrated into British society; would be involved in full-time study with a routine and his/her peers/relatives in the UK and it would therefore be deeply unfair to penalise the child by removing him/her with their the parents due to the parent’s decisions which resulted in the child having no lawful status in the UK.
Therefore a case could be made to the Home Office arguing what is in the ‘best interests of the child’.
Article 8 of the Human Rights Act 1998
Many claims of discretionary leave may centre or rely predominantly around Article 8 of the Human Rights Act 1998. This article seeks to prohibit public authorities such as the Home Office from interfering in an individual’s right to private and family life. One of the most common grounds argued by a person is his rights under Article 8 of the Human Rights Act 1998 which provides that authorities must have respect for an individual’s private and family life. A public authority cannot intervene in an individual’s private or family life except in certain instances as explained below.
Article 8 of the Human Rights Act 1998: “Everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of nationals security public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”.
Immigration rules helpful to overstayer cases
As a result of the changes to the Immigration rules which came into effect on 9th July 2012, any family life claim must now be given consideration under Appendix FM. Appendix FM is commonly cited in overstayer cases and provides that a person (referred to as ‘applicant’) may make an immigration application where:
(a) (i) the applicant has a genuine and subsisting parental relationship with a child who-
- (aa) is under the age of 18 years, or was under the age of 18 years when the applicant was first granted leave on the basis that this paragraph applied;
- (bb) is in the UK;
- (cc) is a British Citizen or has lived in the UK continuously for at least the 7 years immediately preceding the date of application ;and
- (ii) it would not be reasonable to expect the child to leave the UK; or
- (b) the applicant has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen, settled in the UK or in the UK with refugee leave or humanitarian protection, and there are insurmountable obstacles to family life with that partner continuing outside the UK”.
So when the Home Office decide overstayer cases, they must give consideration to claims of human rights arguments and where there are family members in the UK with particular reference to the best interests of the child. Below are some case examples where lawful status has been granted:
1. Winston is a Jamaican national and he entered the UK in 2006 on a 6 months visit visa. He obtained an extension to remain in the UK as a student but when this student visa expired in 2008, he overstayed. Winston has since had a child with a British citizen and is involved with the child and has a parental role in the child’s life despite him now not being with the child’s mother. Winston makes an application to the Home Office in 2014 some 8 years after overstaying his visa, requesting that he be granted discretionary leave to remain in the UK on the basis of him wanting to maintain a parental role in British son’s life. The Home Office subsequently grant him discretionary leave to remain which is valid for 2.5 years and renewable thereafter for up to 10 years after which Winston can apply for Indefinite Leave to Remain.
2. A Mauritian national called Raj came to the UK in 2004 and stayed in the UK. He has worked for many years and paid tax contributions. He has never claimed benefits and does not want to return to Mauritius as he feels the UK is his home and he has nothing to return to in Mauritius. He has also studied educational courses in the UK and works as a Carer. He has not used false documents and is generally of good character. Raj makes an application for discretionary leave to remain in the UK after 11 years of being in the UK and he is granted discretionary leave to remain.
3. A Zimbabwean lady called Martha came into the UK in 2003 as a visitor; she remained in the UK after this date as she did not want to return to Zimbabwe due to the unstable political climate there. Martha met her partner in 2010 who is by ethnicity an English man called Peter and who is British born; Martha and Peter have been living together since 2011. Peter has a young daughter from a previous relationship and has a parental relationship with his young daughter though he and the Zimbabwean lady have no child together. Peter earns £15,000.00 per year from his employment. In 2014, nearly 11 years after overstaying her visa, Martha makes an application to the Home Office arguing that she should be granted discretionary leave to remain in the UK as there are ‘insurmountable obstacles’ in that her Peter cannot live with her in Zimbabwe due to the unstable and difficult political climate and poor job opportunities along with the fact that he has a child in the UK whom he has a parental relationship with and also because of his English ethnicity, he would potentially be targeted if in Zimbabwe and there would be a risk to his life. The Home Office agree that there are insurmountable obstacles and grant the Zimbabwean discretionary leave to remain for 2.5 years initially and which is renewable thereafter.
4. A Ghanaian gentleman by the name of Matthew came to the UK on a Tier 4 (General) visa in 2009 which expired in 2012. However, since then, he has found love and settled down with his partner who holds Indefinite Leave to remain status, and their two young children. Matthew works cash in hand to support himself and his family and his wife also works to look after the family. Taking into account the best interests of the children and the Matthew’s family life under Article 8 of the Human Rights Act, the Home Office subsequently grant him discretionary leave to remain which is valid for 2.5 years and renewable thereafter for up to 10 years after which Winston can apply for Indefinite Leave to Remain.
The current immigration rules are complex and detailed and is best to have an experienced immigration solicitor handle such immigration applications to ensure that the application is undertaken with the high level of expertise required. Generally, the longer the person has been resident in the UK, then arguably the stronger the case for them to be granted leave, especially if they have formed a family life with a partner and any children who are lawfully resident in the UK owing to them having British or permanent legal status. Those individuals who have made tax contributions, never been in trouble with the police, had lengthy residence in the UK and established personal/family ties should have good grounds to lodge a discretionary leave to remain application.
With Capita and other authorities vigilant for unlawful individuals in the UK, now is a time for those who are worried about immigration detention and removal, to obtain the best legal advice possible.
By Raheela Hussain
6 Market Parade
London N9 9HF
Tel. 0208 884 1166
Please note that the above article does not relate to nationals of the European Union. The above article is meant to be relied upon as an informative article only and in no way constitutes legal advice. For advice regarding your case, please contact Greenfields Solicitors for a Consultation. Ms Hussain offers both telephone and in-office consultations for a fee of just £49.00 for 40 minutes advice.
For questions regarding the subject covered in this guide, please visit migreat.com.