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Overstayers should apply for discretionary leave

Immigration specialist explains who can make an application for indefinite leave to remainin UK

17 November2008. There are many people in the UK who have overstayed their visas but donot want to or cannot return to their home country. Where a person has enteredthe UK on a visa, be it on a visit visa, student visa, work permit or some othervisa and this has expired and want to obtain legal status in the UK, then theycan consider making an application for a variation to remain in the UK under aDiscretionary Leave basis.

Discretionary Leave is granted outside of theImmigration Rules and often includes claims made on a human rights basis, but itcan also be granted in cases where a human rights claim fails. A discretionaryleave application is just that: a person asks the Secretary of State to exerciseher discretion in their favour so that they may remain in the UK. A gooddiscretionary leave application will seek to argue a person’s circumstances andbackgrounds such as their age, length of residence in the UK, strength ofconnections within the UK, personal history including character, conduct andemployment record, domestic circumstances, previous criminal record and natureof any offence for which a person has been convicted, compassionatecircumstances and any representations received on the person’sbehalf.

One of the most common grounds argued by a person is his rightsunder Article 8 of the Human Rights Act 1998 which provides that authoritiesmust have respect for an individual’s private and family life. A publicauthority cannot intervene in an individuals private or family life except inthe interests of national security, public safety or the economic well-being ofthe country.

Therefore, for people who are in the UK who have overstayedtheir visas and have formed a relationship with a British citizen or somebodywho has a permanent legal status and even perhaps had children with them, suchpersons have ultimately established what can be argued a family life in the UKand such persons can make an application for a variation for leave to remain inthe UK. There are numerous Home Office policies which deal specifically withregularising the immigration status of people who are both unmarried, or marriedto British citizens or those with permanent legal status in the UK and for thosewho have children who have been here for over 7 years.

7 YearConcession

There are immigration policies which allow indefiniteleave to remain to an individual or family where a child of the family has beenin the UK for 7 years. This is commonly known as the “7 year concession” and isparticularly advantageous to the family members of children who have been in theUK for 7 years- either born here or been here for a continuous period of 7 yearsbefore reaching adulthood (age 18).

The Home Office will usually grantindefinite leave to remain to the child and its family. The Home Office willconsider the following factors in determining a 7 year concessionapplication:

• the length of the parents’ residence without leave;whether removal has been delayed through protracted (and often repetitive)representations or by the parents going to ground;
• the age of thechildren;
• whether the children were conceived at a time when either of theparents had leave to remain;
• whether return to the parents’ country oforigin would cause extreme hardship for
• the children or put their healthseriously at risk;
• whether either of the parents has a history of criminalbehaviour or deception.

Unmarried Partners who have overstayed or areillegal

Unmarried partners who do not have leave, who have leavegranted to them outside of the rules, who have breached immigration control, whoare to be deported or removed or who have not lived together with their partnersfor two years can make an application to remain permanently under adiscretionary basis- the name of this policy is DP/3/96. The Home Office willnot taken enforcement action to remove an individual where: the relationship isa genuine and subsisting one akin to marriage, the sponsor is settled, thecouple have lived together in the UK for at least two years before thecommencement of any enforcement action, where any previous marriage orrelationship has permanently broken down and it is unreasonable to expect thesettled partner to join the applicant on removal.

Non-martialrelationships can be argued under Article 8 of the Human Rights Act 1998 asbeing family life and that same-sex relationships can be argued as privatelives.

What should my application include?

An applicationfor Discretionary Leave will be strengthened by one thing alone: evidence.Evidence includes letters of support from friends and family (this isparticularly important where a claim under article 8 of the Human Rights Act isbeing made) as well as the support of your local M.P. Where the person ismarried, they should include their marriage certificate, children’s birthcertificates, children’s school records over the years, and photographs ofthemselves with friends and family over the years. It is important to show thatthe person has integrated themselves in British society so for example, they mayhave benefited from further education and obtained educational qualifications orthey may have been working and have made tax contributions.

The length ofthe person’s residence in the UK is very important. The longer the person hasbeen the UK, it infers the more ties they have to the country. In law, there isa legal right for persons who have been here 14 years or more to make anapplication for indefinite leave to remain in the UK.

Examples ofCases

In the recent case of Beoku-Betts v SSHD [2008] UKHL 39 theApplicant arrived to the UK as student at the age of 18. The Applicant had asister in the UK, who had become British and had been living in the UK since1993. The Applicant in this case had no relatives remaining in his home countryand had therefore come to the UK to join the family they he did have left here.The Immigration Judge deciding this case allowed an Article 8 appeal on thebasis that there was evidence of a “tight knit family” in the UK. This decisionwas appealed by the Home Office and overturned by the a further Court of Law onthe basis that adjudicator had taken into account the Human Rights of others andshould have limited himself to considering only the Appellant’s Human Rights.This decision was again overturned by a higher court and the law states that theImmigration Judge when deciding such cases must consider whether the Article 8rights of other members of a family unit will be violated by the removal of theAppellant.

The House of Lords in the case of Huang [2007] UKHL 11determined that the test in such circumstances is now whether “the refusal ofleave to enter or remain, circumstances where the life of the family cannotreasonably be expected to enjoyed elsewhere, taking full account of allconsiderations weighing in favour of the refusal, prejudices the family life ofthe applicant in a manner sufficiently serious to amount to a breach of thefundamental right protected by article 8”.

Discretionary Leaveapplications are very popular amongst overstayers who do not want to return totheir home country to apply for entry clearance at the British Embassy to returnto the UK. If you feel your case has human rights grounds and want to look intothe possibility of making a Discretionary Leave application, you should lookinto obtaining thorough legal advice from an accredited ImmigrationSolicitor.

Please note that the above article does not relate tonationals of the European Union. The above article is meant to be relied upon asan informative article and in no way constitutes legal advice. For legal advice regarding your case, please contact GreenfieldsSolicitors for a Consultation with a Solicitor.

By Raheela Hussain, Senior ImmigrationAccredited Specialist Greenfields Solicitors

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