Legal Affairs Solicitors specialised in all types of immigration and human rights matters including:
- Application to the Home Office;
- An appeal to the First-tier Tribunal (Immigration and Asylum Chamber);
- An application to the First-tier Tribunal (Immigration and Asylum Chamber) for permission to appeal to the Upper Tribunal (Immigration and Asylum Chamber);
- An application to the Upper Tribunal (Immigration and Asylum Chamber) for permission to appeal to the Upper Tribunal;
- An Appeal to the Upper Tribunal;
- An appeal to the Court of Appeal Civil Division;
- Judicial Review in the Administrative Court / High Court;
- An appeal to the Supreme Court of England and Waleson point of law; and
- An application to The European Court of Human Rights
Derivative Residence
A person who does not qualify for a right of residence under the free movement directive (Directive 2004/38/EC) may qualify for another right of residence under EU law. These are known as ‘derivative rights’ because they come from (are ‘derived’ from) EU law, not from the directive. A person who qualifies for a derivative right of residence has a right to live and work in the UK for as long as they continue to qualify for this right. Time spent in the UK with a derivative right of residence does not count as residence for the purpose of acquiring permanent residence in the UK. If you have a derivative right of residence you cannot acquire permanent residence on this basis. You will only continue to have that right of residence for as long as you qualify for that right. Application for Derivative Residence Card is made to the Home Office using application form DRF1. The Home Office will process the application for derivative residence card within 6 months from the date of receipt of the application.
Types of derivative rights of residence
A person may qualify for a derivative right of residence in one of the following categories:
- as the primary carer of a British citizen child or dependent adult, where requiring the primary carer to leave the UK would force that British citizen to leave the EEA;
- as the primary carer of an EEA national child who is exercising free movement rights in the UK as a self-sufficient person, where requiring the primary carer to leave the UK would prevent the EEA national child exercising those the free movement rights;
- as the child of an EEA national worker/former worker where that child is in education in the UK;
- as the primary carer of a child of an EEA national worker/former worker where that child is in education in the UK, and where requiring the primary carer to leave the UK would prevent the child from continuing their education in the UK; or
- as the dependent child aged under 18 of a primary carer in one of the categories set out above, where requiring that dependent child to leave the UK would force the primary carer to leave the UK with them.
EEA Family Permit
An EEA family permit is a form of ‘entry clearance’ to the UK (similar to a visa). It is for nationals of countries outside the European Economic Area (EEA) who are family members of EEA nationals.
Although the UK is a member of the EEA, a non-EEA family member of a British citizen should not generally come to the UK using an EEA family permit. However, a non-EEA family member of a British citizen living abroad can apply for an EEA family permit to join the British citizen on their return to the UK if:
- the British citizen has been living in an EEA member state as a worker or self-employed person; and
- the family member, if they are the British citizen’s spouse or civil partner, has been living together with the British citizen in the EEA country.
EEA family permit is issued for six months and before the expiry of the EEA family permit, the non-EEA national can apply for residence card as a family member of an EEA national. Similarly, a person who has entered the UK with family permit under Surrinder Singh principle, can apply for residence card as a family member of a British Citizen. Residence card as a family member of an EEA national is issued for five years in accordance with the EEA Regulations 2006.
Appeal Against Refusal Of Family Permit
If your application for family permit is refused by the Entry Clearance Officer (ECO), you will have a right of appeal against the refusal of your application. The appeal should be filed with the First Tier Tribunal within 28 days from the date of receipt of the refusal letter. We can represent you in relation to your appeal against the refusal of family permit.
Extended Family Members
Extended family members’ is defined in Regulation 8 as meaning:
- more distant family members of the EEA national or of his spouse / civil partner who can demonstrate that they are dependant
- partners where there is no civil partnership but they can show that they are in a “durable relationship” with the EEA national.
For extended family members only the following conditions in relation to dependency must be satisfied:
- The extended family member must have established his/her dependency on the relevant EEA national in the country from which the EEA national moved to the UK. This is consistent with the wording of Article 3(2) of the Directive, which states that the person must be a dependant of the EEA national in the country from which they have come;
- The dependency must have existed immediately before or very recently before the EEA national came to the UK; and
- The extended family member must have come to the UK at the same time as the EEA national or just before or very recently thereafter.
Article 3(2) of the Free Movement Directive provides for Member States to facilitate entry and residence, in accordance with their national legislation, for
- “any other family members, irrespective of nationality, not falling under the definition in point 2 of Article 21 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the Union citizen”; and
- “the partner with whom the Union Citizen has a durable relationship, duly attested.”
Under Regulation 8 there are four kinds of extended family member:
- a person who is a relative of an EEA national or his/her spouse or civil partner and who is financially dependent on the EEA national or is a member of his/her household, and who either (i) is accompanying the EEA national to the UK / wishes to join him there, or (ii) has joined him in the UK and continues to be dependent on him or to be a member of his/her household;
- a person who is a relative of an EEA national or his/her spouse or civil partner and, on serious health grounds, strictly requires the personal care of the EEA national or his/her spouse or civil partner;
- a person who is a relative of an EEA national and would meet the requirements of the Immigration Rules (other than those relating to entry clearance) for ILR as a dependent relative of an EEA national were the EEA national a person present and settled in the UK;
- a person who is the partner of an EEA national (other than a civil partner) and can prove that he is in a durable relationship with the EEA national.
Until an applicant is recognised as an extended family member and issued with a residence card (or EEA family permit or registration certificate) he has no rights deriving from EU law.
Permanent Resident Card as an EEA National or Family Member of an EEA National
An EEA national and his/her family members who have resided in the UK for five years continuously in accordance with the EEA Regulations 2006 can apply for Permanent Residence in the UK. Such application is made under Regulation 15 of the EEA Regulations 2006. The application form EEA (PR) is completed to submit an application for permanent residence as an EEA national or as a family member of an EEA national.
Registration Certificate as an EEA National:
If an EEA national is exercising Treaty rights in the UK then s/he may request that s/he is issued with a registration certificate as confirmation of his/her right of residence under EC law. Application is made to the Home Office, UKBA using application form EEA (QP). Previously such application was submitted using application form EEA1.
The Immigration (EEA) Regulations 2006 applies and interprets the UK’s obligations under the Free Movement of Persons Directive 2004/38/EC into domestic law. The right given to EEA nationals under these regulations is commonly known as free movement rights.
Switzerland is not part of the EEA, but Swiss nationals and their family members also have the same free movement rights as EEA nationals.
Right of admission and right of residence
An EEA national has the right to enter the UK. They must show a valid national identity card or passport issued by an EEA state. This right is given under regulation 11 of the regulations. Once admitted to the UK, an EEA national may live here for up to three months under regulation 13 of the 2006 Immigration (EEA) Regulation.
Regulation 14 of the regulations gives an EEA national an extended right to remain in the UK as long as they continue to meet the condition of being a ‘qualified person’. For more information, see link on left: Conditions of free movement rights.
EEA member states
Countries that are part of the EEA are known as member states. Nationals of these countries are known as EEA nationals. The member states include countries in the European Union (EU) and also Iceland, Lichtenstein and Norway, who are not part of the EU. The list below shows the EEA member states in alphabetical order.
Austria | Belgium | Bulgaria |Cyprus | Czech Republic | Denmark | Estonia | Finland | France | Germany | Greece | Hungary | Iceland | Irish Republic | Italy | Latvia | Liechtenstein | Lithuania | Luxembourg | Malta | Netherlands | Norway Poland | Portugal | Romania | Slovakia | Slovenia | Spain | Sweden | United Kingdom
Nationals of Gibraltar have full British citizenship and are considered part of the European Economic Community. This means that people from Gibraltar have rights of free movement within EEA member states other than the UK. EEA nationals may also exercise free movement rights within Gibraltar.
Switzerland
On 1 June 2002 the agreement between the European Community, its member states and the Swiss Confederation on free movement rights came into force. The agreement gives Swiss nationals and their family members the same free movement rights as EEA nationals and their family members.
Exercising Treaty Rights As EEA Nationals
Under regulation 6 of the Immigration (EEA) Regulations 2006, a qualified person is an EEA national who is in the UK and exercising free movement rights in any of the following five categories:
- job seekers
- worker
- self-employed person
- self-sufficient person
- student
Exercising Treaty Rights As A Worker
An EEA national may exercise free movement rights in the UK as a qualified person if they are working. The EEA national must be doing genuine and effective paid work, carried out under the direction of someone else, on a full-time or part-time basis.
EEA nationals who are in the UK as a worker are expected to be able to support themselves. They may claim public funds under European Community law without losing their right of residence.
Under regulation 6(2) of the Immigration (EEA) Regulations 2006, if an EEA national stops working, they may still be considered a qualified person if:
- they are temporarily unable to work because of an illness or accident
- they are involuntarily unemployed and have started vocational training or
- have voluntarily stopped working and started on vocational training related to their previous employment.
An EEA national who provides sufficient evidence to show that they are exercising free movement rights in the UK as a worker may apply for a registration certificate.
Exercising Treaty Rights As A Job Seeker
An EEA national may exercise free movement rights in the UK as a job seeker if they are seeking work. Under regulation 6(4) of the Immigration (EEA) Regulations 2006, they must show they are actively seeking work and have a realistic chance of finding work.
The EEA nationals may also exercise treaty rights if:
- they have registered as a job seeker and were employed for at least a year before becoming unemployed; and
- have been unemployed for no more than six months, or
- can provide evidence that they are seeking employment in the UK and have a genuine chance of being engaged.
Exercising Treaty Rights As A Self-employed Person
An EEA national may exercise free movement rights in the UK as a qualified person if they work for themselves in a self-employed capacity. Anyone who claims to be exercising free movement rights as a qualified person in this category must be self-employed and registered for income tax and national insurance purposes as a self-employed person with HM Revenue & Customs (HMRC). To prove that you are exercising treaty rights as a self-employed person you may have to provide various documents including proof of registration with HMRC, invoices for work done, a copy of business accounts, an accountant’s letter, bank statements or other similar documents.
Under regulation 6(3) of the Immigration (EEA) Regulations 2006, if an EEA national exercising free movement rights as a self-employed person is temporarily unable to work because of illness or accident, they may still be classed as self-employed.
An EEA national exercising free movement rights as a self-employed person may claim public funds like ‘top up’ benefits for low paid workers or benefits for the involuntarily unemployed without their right of residence being affected.
An EEA national who provides sufficient evidence to show that they are exercising free movement rights in the UK as a self-employed person may apply for a registration certificate.
Exercising Treaty Rights As A Self-sufficient Person
An EEA national may exercise free movement rights in the UK as a qualified person if they are self-sufficient. A self-sufficient person is someone who has:
- enough money to cover their living expenses without needing to claim benefits in the UK, and
- comprehensive sickness insurance in the UK for themselves and any family members.
EEA nationals who are in the UK in a self-sufficient capacity are expected to be able to support themselves. They may lose their right of residence if they claim certain public funds and become a burden on the social assistance system in the UK. A retired person may qualify as self-sufficient if they can show that they receive a pension or have enough income from other sources for example, investments, to cover their living expenses without needing to claim benefits in the UK.
An EEA national who can provide sufficient evidence to show that they are exercising free movement rights in the UK in a self-sufficient capacity may apply for a registration certificate.
An EEA national doing charity work may qualify as self-sufficient if they can show they have enough funds to support themselves, or that a charity is meeting their living costs. For example, a volunteer may qualify as self-sufficient if their living costs are being met by the charity organisation they work for.
Exercising Treaty Rights As A Student
An EEA national may exercise free movement rights in the UK as a qualified person if they are a student. Anyone who claims to be exercising free movement rights as a qualified person in this category must be:
- Enrolled to follow a course of study at a private or public educational establishment recognised as an education or training provider that complies with the Immigration (EEA) Regulations 2006. You can download the register of sponsors under the points-based system which shows organisations that are licensed under Tier 4 students using the related link.
- Able to show they have enough money to meet their living expenses. You may accept evidence such as:
- bank statements
- other evidence of the award of a grant or sponsorship, or
- a written declaration by the student that they have enough money
- Registered on a course of study that has started.
- Able to show they have comprehensive sickness insurance.
EEA nationals who are in the UK as a student are expected to be able to support themselves. They may lose their right of residence if they claim certain public funds and become a burden on the social assistance system in the UK.
An EEA national who provides sufficient evidence to show that they are exercising free movement rights in the UK as a student may apply for a registration certificate.
Residence Card as a family member of an EEA National:
If a citizen of the European Economic Area (EEA) or Switzerland is living in the UK in accordance with the Immigration (European Economic Area) Regulations 2006, their family members who are not EEA or Swiss citizens also have the right to live in the UK.
If you are the non-European family member of an EEA or Swiss national, and you have come to the UK with them, you can apply for a residence card. This is a document which confirms your right of residence under European law. Your residence card may take the form of an endorsement in your passport (also called a ‘vignette’), or it may be a separate document called an ‘immigration status document’. A residence card is normally valid for 5 years from the date when it is issued.
The applicant must submit a valid passport for the application for residence card to be approved. Also, the EEA national must be exercising treaty rights in the UK and evidence of the same must be submitted with the application. According to EEA Regulations 2006, the Home Office is legally bound to consider and decide an application for residence card within 6 months from the date of receipt of the application. Any delay or negligence in part of the Home Office in not deciding the application within six months can be challenged by way of Judicial Review in High Court.
Appeal Against Refusal Of Residence Card
If your application for residence card is refused by the Home Office, you will have a statutory right of appeal against the refusal of the application unless you did not provide the evidence of your family member’s nationality i.e. the ID card or passport of the EEA national. Appeal against the refusal of residence card application must be filed within 10 working days (5 working days if you are in detention) from the date of receipt of the refusal letter. We can assist you and represent you in relation to your appeal against the refusal of your residence card application.
If you have not been granted right of appeal against the refusal of your application and you disagree with the reasons for refusal, it is also possible to challenge the refusal of your application by way of Judicial Review in High Court.
Retaining Rights of Residence
Directive 2004/38 has incorporated ECJ case-law such as Baumbast and Diatta to allow non-EEA nationals family members to retain the right of residence.
There are now a number of circumstances in which non-EEA national family members of EEA nationals may retain their right of residence in the UK if the EEA national leaves the UK or dies or the relevant marriage or civil partnership is terminated. These circumstances are set out in regulation 10 of the 2006 Regulations.
“Family member who has retained the right of residence”
10.—(1) In these Regulations, “family member who has retained the right of residence” means, subject to paragraph (8), a person who satisfies the conditions in paragraph (2), (3), (4) or (5).
(2) A person satisfies the conditions in this paragraph if—
(a) he was a family member of a qualified person when the qualified person died;
(b) he resided in the United Kingdom in accordance with these Regulations for at least the year immediately before the death of the qualified person; and
(c) he satisfies the condition in paragraph (6).
(3) A person satisfies the conditions in this paragraph if—
(a) he is the direct descendant of—
(i) a qualified person who has died;
(ii) a person who ceased to be a qualified person on ceasing to reside in the United Kingdom; or
(iii) the person who was the spouse or civil partner of the qualified person mentioned in sub-paragraph (i) when he died or is the spouse or civil partner of the person mentioned in sub-paragraph (ii); and
(b) he was attending an educational course in the United Kingdom immediately before the qualified person died or ceased to be a qualified person and continues to attend such a course.
(4) A person satisfies the conditions in this paragraph if the person is the parent with actual custody of a child who satisfies the condition in paragraph (3).
(5) A person satisfies the conditions in this paragraph if—
(a) he ceased to be a family member of a qualified person on the termination of the marriage or civil partnership of the qualified person;
(b) he was residing in the United Kingdom in accordance with these Regulations at the date of the termination;
(c) he satisfies the condition in paragraph (6); and
(d) either—
(i) prior to the initiation of the proceedings for the termination of the marriage or the civil partnership the marriage or civil partnership had lasted for at least three years and the parties to the marriage or civil partnership had resided in the United Kingdom for at least one year during its duration;
(ii) the former spouse or civil partner of the qualified person has custody of a child of the qualified person;
(iii) the former spouse or civil partner of the qualified person has the right of access to a child of the qualified person under the age of 18 and a court has ordered that such access must take place in the United Kingdom; or
(iv) the continued right of residence in the United Kingdom of the person is warranted by particularly difficult circumstances, such as he or another family member having been a victim of domestic violence while the marriage or civil partnership was subsisting.
(6) The condition in this paragraph is that the person—
(a) is not an EEA national but would, if he were an EEA national, be a worker, a self-employed person or a self-sufficient person under regulation 6; or
(b) is the family member of a person who falls within paragraph (a).
(7) In this regulation, “educational course” means a course within the scope of Article 12 of Council Regulation (EEC) No. 1612/68 on freedom of movement for workers [11].
(8) A person with a permanent right of residence under regulation 15 shall not become a family member who has retained the right of residence on the death or departure from the United Kingdom of the qualified person or the termination of the marriage or civil partnership, as the case may be, and a family member who has retained the right of residence shall cease to have that status on acquiring a permanent right of residence under regulation 15.
British Citizenship
Application For Registration As A British British Citizen If You Were Born In The UK On Or After 1 January 1983 And Lived Here Up To The Age Of 10:
To register as a British citizen you must:
- have been born in the United Kingdom; and
- have been born on or after 1 January 1983; and
- be 10 years of age or over; and
- have spent no more than 90 days outside the United Kingdom in each of the first 10 years of your life.
It may be possible for the UKBA to make an exception to the requirement to have spent fewer than 90 days outside the United Kingdom. If you have exceeded this number of days but believe there are special circumstances, you should explain these on your application form.
Legal Affairs Solicitors are experts in dealing with application for a child’s registration as a British Citizen on the basis that the child was born in the UK and has resided in the UK continuously for 10 years. You can contact us if you are seeking legal help from immigration lawyers in London in relation to your application for registration of your child as a British Citizen and our immigration solicitors will provide you fast, friendly, reliable and professional immigration service.
If instructed to represent you regarding your application for registration as a British Citizen, we will:
- take detailed Instructions from you and advise you about the relevant immigration laws and procedures to be adopted by the Home Office, UKBA in your immigration case;
- discuss your case in detail with you and advise you about the weaknesses and strengths of your immigration case;
- advise you about the documentary evidence to be submitted in support of your application for registration as a British Citizen;
- consider contents of the documentary evidence to be submitted in support of the application and discuss the same with you;
- complete the relevant immigration form and discuss the same with you;
- prepare a covering letter to introduce and support your application for registration as a British Citizen;
- will liaise with the Home Office for an expeditious decision on the application;
- protect your interests while your application is pending with the Home Office and keep you informed of the progress on your immigration matter;
- do all the follow up work until decision is reached on your application for registration as a British Citizen;
- advise you about the implications of the Home Office decision on your application for registration as a British Citizen.
Form T Application
- We will charge you a reasonable fee for our professional immigration services in relation to your application for British Citizenship as a child who was born in the UK and who has continuously resided in the UK for 10 years. The agreed fee will depend on the complexity of the matter and the casework involved in the matter.
Naturalisation As A British Citizen
A person who has completed five years residence in the UK and has held Indefinite Leave to Remain (ILR) for last one year can apply for naturalisation as a British Citizen. A person who is married to a British Citizen can apply for naturalisation as a British Citizen as soon as such person has completed 3 years residence in the UK and has Indefinite Leave to Remain (ILR) in the UK. The applicant must not have any unspent criminal conviction and must have passed Life in the UK Test before an application for naturalisation as a British Citizen is made to the Home Office, UKBA.
Registration As A British Citizen By A Stateless Person
To meet the UK’s obligations under the United Nations Convention on the Reduction of Statelessness, Schedule 2 to the British Nationality Act 1981 makes provision for the acquisition of the citizenships and statuses created by the Act by certain persons who are or would otherwise be stateless.
Registration As A British Citizen By Person Born Before 1983 To British Mother
You may be eligible to register as a British citizen if:
- you were born before 1 January 1983; and
- you would have become a citizen of the United Kingdom and Colonies by descent if women had been able to pass this citizenship on to their children in the same way as men at the time of your birth; and
- you would have had the right of abode in the UK and have become a British citizen on 1 January 1983, if you had become a citizen of the United Kingdom and Colonies; and
- you are of good character.
It is important that you meet all of these requirements. You cannot register using form UKM unless you would automatically have become a British citizen on January 1983 if women had been able to pass citizenship on before that date. Many applications using form UKM fail because the applicant meets requirement 2 but not requirement 3.
You will not qualify for registration if you would have become a British overseas citizen or a British dependent territories citizen on 1 January 1983, if women had been able to pass citizenship on before that date.
Registration As A British Citizen If You Had Previously Given Up British Citizenship
You may apply to resume your British citizenship if you are of sound mind and:
- you made a declaration to give up British citizenship after 1 January 1983; or
- you made a declaration to give up citizenship of the United Kingdom and Colonies before 1 January 1983.
- born, naturalised or registered in the United Kingdom; or
- registered as a citizen of the United Kingdom and Colonies in an independent Commonwealth country.
Registration As British Citizen By British Protected Person
If you are a British Protected Person, you may be eligible to register as a British Citizen under one of the eligibility criteria as set out below.
Registration On The Basis Of Five Years Residence:
To be eligible to register under the five-year residence requirement you must:
- have been resident in the United Kingdom for at least five years; this is known as the residential qualifying period; and
- have been present in the United Kingdom five years before the date of your application; and
- have not spent more than 450 days outside the United Kingdom during the five-year period; and
- have not spent more than 90 days outside the United Kingdom in the last 12 months of the five-year period; and
- have not been in breach of the immigration rules at any stage during the five-year period; and
- be free from immigration time restrictions for the last 12 months of the five-year period of your stay in the United Kingdom. The residential qualifying period will be worked out from the day we receive you application. You must show you were present in the United Kingdom at the start of this period. For example, if we received your application on 25 November 2005, you would have to show that you were in the United Kingdom on 26 November 2000.
- You cannot count time you have spent in the United Kingdom while exempt from immigration control as part of the residential qualifying period. If you are in the United Kingdom as a diplomat or as a member of visiting armed forces or if you are in any place of detention, you would be considered exempt from immigration control. This time would be treated as absence from the United Kingdom.
Registration On The Basis Of Crown Or Similar Service
If you do not meet the five-year residence requirement, you may be eligible to register as a British citizen on the basis of your own crown or similar service.
You will need to show that:
- you have been or are in crown service under the government of a British overseas territory; or
- you have been or are in service as a member of a body established by law in a British overseas territory, the members of which are appointed by or on behalf of the crown.
Registration on the basis of crown or similar service is only granted in exceptional circumstances. You need to show that you:
- have been or are the holder of a responsible post; and
- have given outstanding service; and
- have a close connection with the United Kingdom.
Registration As British Citizen If You Are A British Protected Person With No Other Nationality
Followings are the requirements you need to meet to be eligible for registration as a British citizen by descent.
You must:
- be a British protected person;
- not hold any other citizenship or nationality;
- not have given up any citizenship or nationality;
- not have lost any citizenship or nationality by action or inaction.
It is possible to be a citizen or national of a country even if you have never held a passport issued by the authorities of that country. You should make sure this does not apply to you before you make your application.
Registration Of A Child As British Citizen – MN1 Application
Children who are under the of 18 years (minors) can apply to the Home Office for registration as British citizens (MN1 Application) under the following sections of the British Nationality Act 1981. Once a child reaches age 18 they will have to apply to naturalise using form AN.
- Section 1 (3) birth in the UK to parents who are now settled in the UK or have become British citizens;
- Section 1 (3A) birth in the UK to parents who have joined the armed forces;
- Section 3 (1) child whose parents are applying for British citizenship;
- Section 3 (2) birth abroad to parents who are British by descent and have lived in the UK or a British overseas territory;
- Section 3 (5) birth abroad to parents who are British by descent but are now living in the UK or a British overseas territory;
- Section 3 (1) children adopted abroad by British citizen parents;
- Section 3 (1) children whose parents had renounced and subsequently resumed British citizenship;
- Section 3 (1) any other case not listed below where it is considered to be in the child’s best interests to be granted British citizenship;
- Section 4D birth abroad to parents serving in the armed forces.
Human rights Application
A person who has established his private and family life in the UK can apply to the Home Office, UKVI for permission to stay in the UK under Article 8 of the European Convention on Human Rights (ECHR).
Before 9 July 2012, all the applications made under Article 8 of the European Convention on Human Rights (ECHR) were considered by the Home Office outside the Immigration Rules and under the Discretionary Leave policy of the Home Office. However, Immigration Rules were changed and implemented on 9 July 2012 whereby any claim for Article 8 is now decided under the Immigration Rules. The relevant paragraphs of the Immigration Rules for the consideration of such Article 8 claims include paragraph 276ADE to decide the private life factor of the Article 8 claim and Appendix FM to decide the family life of the Article 8 claim.
The courts have held that where the facts of the case are exceptional and the exceptionality test is satisfied, the Home Office should still consider the Article 8 claims outside the Rules after it has been considered under the Immigration Rules. In very exceptional cases, it is still possible for an applicant to fail in Article 8 claim under the Immigration Rules but still succeed outside the Immigration Rules due to exceptional compassionate circumstances surrounding the human rights application.
Various applications which can be made by applicants under Article 8 of the ECHR include the following:
Applications on the basis of private life in the UK
Following are the various applications which can be made for permission to stay or extension of stay under the private life factor of Article 8 of the European Convention on Human Rights (ECHR):
20 YEARS LONG RESIDENCE (10 YEARS ROUTE TO SETTLEMENT)
A person who has lived in the UK continuously for 20 years in the UK whether lawfully or unlawfully can apply for permission to stay in the UK for 30 months under paragraph 276ADE of the Immigration Rules. Before the expiry of such leave to remain, the application can apply for extension of stay for another 30 months leave to remain. After completion of 10 years residence under this category, the applicant is entitled to apply for Indefinite Leave to Remain in the UK. The initial application and applications for extension of stay under this category are made using application form FLR (FP) and an application for ILR using application form SET (FP).
CHILD WHO HAS LIVED IN THE UK FOR 7 YEARS CONTINUOUSLY
A child who has lived in the UK for 7 years continuously can apply for leave to remain on the basis of private life. Paragraph 276ADE(1)(iv) requires that the applicant must be under the age of 18 years and must have lived continuously in the UK for at least 7 years (discounting any period of imprisonment) and it should not be reasonable to expect the child to leave the UK.
A PERSON WHO IS OVER THE AGE OF 18 AND UNDER THE AGE OF 25 AND HAS SPENT MAJORITY OF HIS LIFE IN THE UK
A person who is over the age of 18 and under the age of 25 can apply for leave to remain on the basis of his private life if he can show that he has spent at least half of his life living continuously in the UK. The application is made using application form FLR (FP) and if the application is successful, the applicant is granted leave to remain for 30 months under the 10 years route to settlement.
A PERSON WHO IS OVER THE AGE OF 18 AND HAS LIVED LESS THAN 20 YEARS IN THE UK BUT THERE WOULD BE VERY SIGNIFICANT OBSTACLES TO HIS COUNTRY OF ORIGIN
A person who is over the age of 18 and has lived continuously in the UK for less than 20 years can apply for leave to remain on the basis of his private life in the UK if he can show that there would be very significant obstacles to his integration into the country to which he would have to go if required to leave the UK. The threshold is very high for someone to satisfy the requirement of very significant obstacles to his integration into his country of origin. Only the applicants with exceptional circumstances are likely to succeed under this category. The application under this category is made by using application form FLR (FP) and if the application is successful, permission to stay will be granted for 30 months under 10 years route to settlement.
Applications On The Basis Of Family Life In The UK
Following are the various applications which a person can submit to the Home Office on the basis of his family life in the UK:
FAMILY LIFE WITH PARTNER
A person who is partner of a person present and settled in the UK or of a British Citizen can apply for leave to remain in the UK on the grounds of his family life in the UK with his partner. The application is made using application form FLR (FP) and if the application is successful, the applicant is granted leave to remain in the UK for 30 months under the 10 years route to settlement. The important factor for such application to be successful is that either
- the applicant has a parental relationship with a child who is settled in the UK or is British, or
- the applicant has a genuine and subsisting relationship with his UK partner and there are insurmountable obstacles to family life with that partner continuing outside the UK.
Immigration Appeals & Administrative Review
Appeal Against Deportation
A person who has been served with a notice of intention to deport can appeal against such notice within 5 working days from the date of receipt of such notice. The notice of appeal must be filed with the First Tier Tribunal where the Immigration Judge will hear the appeal and decide whether or not the deportation is in accordance with the law.
According to the Immigration Rules, a deportation order will not be made if the person’s removal pursuant to the order would be contrary to the UK’s obligations under the Refugee Convention or the Human Rights Convention. Where deportation would not be contrary to these obligations, it will only be in exceptional circumstances that the public interest in deportation is outweighed.
The deportation of a person can be challenged on the grounds that:
(a) the person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and
(i) the child is a British Citizen; or
(ii) the child has lived in the UK continuously for at least the 7 years immediately preceding the date of the immigration decision; and in either case
(a) it would not be reasonable to expect the child to leave the UK; and
(b) there is no other family member who is able to care for the child in the UK; or
(b) the person 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
(i) the person has lived in the UK with valid leave continuously for at least the 15 years immediately preceding the date of the immigration decision (discounting any period of imprisonment); and
(ii) there are insurmountable obstacles to family life with that partner continuing outside the UK; or
(c) the person has lived continuously in the UK for at least 20 years immediately preceding the date of the immigration decision (discounting any period of imprisonment) and he has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK; or
(d) the person is aged under 25 years, he has spent at least half of his life living continuously in the UK immediately preceding the date of the immigration decision (discounting any period of imprisonment) and he has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK.
Where the appeal against the deportation notice is successful on the grounds that the deportation will be in breach of the UK’s obligation under Article 8 of the ECHR, he may be granted leave to remain for a period not exceeding 30 months. Such leave shall be given subject to such conditions as the Secretary of State deems appropriate. Such person may be granted an extension of stay for further period of 30 months if an extension of stay is sought before the expiry of such leave.
If a deportation order has been made against you, we can:
- advise you about the weaknesses and strengths of your immigration case;
- advise you about possible grounds to appeal against the notice of intention to deport;
- advise you about the documentary evidence to be submitted in support of your appeal;
- consider contents of the documentary evidence to be submitted in support of the appeal and discuss the same with you;
- complete the relevant appeal form and discuss the same with you;
- prepare grounds of appeal in support of the appeal;
- prepare a covering letter to introduce and support the appeal;
- submit notice of appeal to the Asylum and Immigration Tribunal with all the supporting documentation;
- discuss the contents of the Home Office’s bundle with you and prepare a detailed witness statement to be submitted in support of the appeal;
- prepare witness statements of any other witness(es) who can give evidence in the court in support of the appeal;
- prepare the indexed and paginated appeal bundles of documents to be submitted in support of the appeal;
- will arrange a pre-hearing conference with our Barrister/Advocate who will discuss your case with you and advise you about the court procedure in relation to your appeal;
- instruct our barrister to represent you before the Immigration Judge at Asylum and Immigration Tribunal in your appeal hearing;
- discuss your court hearing with you and discuss with you the likely outcome of the appeal hearing;
- do all the follow up work until decision is reached on your appeal;
- advise you about the implications of the decision on your appeal.
Deportation Appeal
- We will charge you a fixed fee for our professional immigration services in relation to your deportation appeal. The fixed fee will depend on the complexity of the matter and the casework involved in the matter.
- If you cannot afford to pay our fee in full at the time of instructing us in relation to your matter, you can pay half of the fee at the time of instructing us and rest of the fee can be paid by monthly instalment.
- Please note that our fees are exclusive of any disbursements to be incurred on your behalf such as barrister’s fee, court fee, translation of documents, Medical Reports etc.
Judicial Reviews
Emergency Injunction to Stop Removal from The UK
A person who is being removed from the UK and the Home Office, UKBA have set directions for his removal from the UK, can seek an emergency injunction from the Upper Tribunal to stop his removal from the UK if it can be shown that such removal from the UK is unlawful and therefore not in accordance with law.
In cases, where someone is being removed during time outside court working hours, an injunction can be sought from Duty Judge Upper Tribunal and such injunction can be obtained even over the phone by explaining to the Duty Judge Upper Tribunal how the removal of the person being removed is unlawful and not in accordance with the relevant law.
UK Student Visa
The Tier 4 General Student visa category is for students to come to the UK for post – 16 education, and the Tier 4 (Child) student visa is for children aged 4 to 17 years to come to the UK for their education. Children aged 4 to 15 years only qualify if they are being educated at independent fee paying schools.
To be granted leave, Tier 4 migrants must satisfy the Immigration Rules and score points against two sets of objective criteria to achieve an overall pass mark of 40 points.
Applicants must score points for:
- attributes (30 points), and
- maintenance (10 points)
If you are outside the UK, you can make an application for entry clearance as a Tier 4 General Student or a Tier 4 Child Student. If you are already in the UK, you may be able to switch or extend your stay in the UK as a Tier 4 General student or Tier 4 Child student, as the case may be.
Entry Clearance As Tier 4 General Student |
Switching Into Tier 4 General |
Tier 4 General Student Visa Extension |
Dependents of Tier 4 General Student |
Entry Clearance As A Tier 4 Child Student |
Switching into Tier 4 Child Student |
Long Residence Applications
Following are the various applications which can be submitted to the Home Office on the basis of a person’s long residence in the UK:
Indefinite Leave To Remain (ILR) On The Basis Of 10 Years Continuous Lawful Residence
A person who has lived in the UK continuously and lawfully in the UK for 10 years can apply for Indefinite Leave to Remain (ILR) on the basis of his 10 years long residence. Such application is made by completing application form SET (LR). We can provide Same Day Visa Service for the ILR applications on the basis of 10 Years long residence.
Extension Of Stay On The Basis Of 10 Years Long Residence
If you do not qualify for ILR on the basis of 10 years long residence e.g. because you could not pass the Life in the UK test or you have a criminal conviction which will become a reason for refusal of your ILR application, you can apply for extension of stay on the basis of 10 years long residence. An application for extension of stay on the basis of 10 years long residence is submitted using application form FLR (LR).
Limited Leave To Remain On The Basis Of 20 Years Continuous Residence In The UK
A person who has lived in the UK for 20 years continuously can apply for limited leave to remain on the basis of 20 years long residence. Application for stay on the basis of 20 years long residence is made using application form FLR (FP) and the successful applicant will be granted leave to remain for 30 months under the 10 years route to settlement.
Applications For UK Visas (Entry Clearance)
Entry clearance is the procedure used by Entry Clearance Officers (ECOs) at British missions overseas to check, before a person arrives in the UK, if that person qualifies under the Immigration Rules for entry to the UK.
If your application for entry clearance is refused by the Entry Clearance Officer (ECO), you may have one of the following options available to you to challenge the refusal depending on type of the application you submitted:
- Appeal to the First Tier Tribunal (Entry Clearance Appeal)
- Administrative Review
- Pre Action Protocol
- Judicial Review
Following are the various applications for entry clearance (UK Visa) which can be submitted to the British Embassy/High Commission/Consulate from outside the UK:
- Entry Clearance As A Fiance(e)
- Entry Clearance As Proposed Civil Partner
- Entry Clearance As A Spouse
- Entry Clearance As A Civil Partner
- Entry Clearance As An Unmarried Partner
- Entry Clearance As Same Sex Partner
- Entry Clearance As A Visitor For Marriage Or Civil Partnership
- Entry Clearance As A Child Of A Person With Limited Leave As A Partner
- Entry Clearance As A Parent To Exercise Right Of Access
- Entry Clearance As Adult Dependent Relative
- Entry Clearance For Family Permit As Family Member Of An EEA National
- Entry Clearance As A Returning Resident
- Entry Clearance As A Prospective Entrepreneur
- Entry Clearance As Tier 1 Entrepreneur Migrant
- Entry Clearance As Tier 1 Exceptional Talent
- Entry Clearance As Tier 1 Investor
- Entry Clearance As Tier 2 General
- Entry Clearance As Tier 2 Intra Company Transfer (ICT)
- Entry Clearance As Tier 2 Minister Of Religion
- Entry Clearance As Tier 2 Sportsperson
- Entry Clearance As A Domestic Worker
- Entry Clearance As A Turkish ECAA Businessperson
- Entry Clearance As A Sole Representative Of Overseas Business
- Entry Clearance As A Person With UK Ancestry
- Entry Clearance As A Student Visitor
- Entry Clearance As Tier 4 General Student
- Entry Clearance As Tier 4 Child Student
- Entry Clearance As Tier 5 (Temporary Worker – Charity Workers)
- Entry Clearance As Tier 5 (Temporary Worker – Creative And Sporting)
- Entry Clearance As Tier 5 (Temporary Worker – Government Authorised Exchange)
- Entry Clearance As Tier 5 (Temporary Worker – International Agreement)
- Entry Clearance As Tier 5 (Temporary Worker – Religious Workers)
- Entry Clearance As Tier 5 (Youth Mobility Scheme)
- Entry Clearance As A Business Visitor
- Entry Clearance As A Child Visitor
- Entry Clearance As A Family Visitor
- Entry Clearance As A General Visitor
- Entry Clearance As A Parent Of A Child At School
- Entry Clearance As A Sports Visitor
- Entry Clearance As A Visitor For Private Medical Treatment
- Entry Clearance As A Visitor In Transit
- Entry Clearance As A Visitor Under Approved Destination Status (ADS) Agreement With China
- Entry Clearance As An Entertainer Visitor
- Entry Clearance As A Visitor To Take The PLAB Test
- Entry Clearance As A Visitor Undertaking Permitted Paid Engagements