There have been a number of recent changes to the Immigration Rules relating to Private Life and Family Life applications and Settlement under these routes.
In previous posts we have focused on changes made to the Private Life route for leave to remain and settlement. This article provides a summary of the new Rules for settlement on the basis of Family Life and continuous residence.
Appendix Settlement Family Life
Appendix Settlement Family Life sets out the rules to settle in the UK for a person who has a qualifying 10 year period as a partner or parent, or on a combination of these routes. It entered into force on 20 June 2022. Appendix FM still governs the rules on settlement for those who are on a 5-year route.
This is an alternative route to settling on the basis of 10 years long residence.
Validity of an Application for Family Life Settlement
The validity rules for settlement on the basis of a qualifying 10 year period as a partner or parent, or on a combination of these routes, are moved within this Appendix, instead of relying on Paragraph 34A.
To make a valid application for settlement on this route:
- The correct application form must be used which is the online form ‘settlement as a partner or parent'; and
- The application fee must have been paid; and
- Biometrics must be provided as required; and
- The applicant must provide a passport or other travel document to satisfactorily establish their identity and nationality; and
- The applicant must be in the UK on the date of application.
In order to apply for settlement on the 10 year Family Life route, the applicant must have, or have last been granted, permission as a partner or parent under Appendix FM.
Suitability Requirements for Family Life Settlement
The suitability grounds for refusal which apply to applications for indefinite leave to remain under Appendix FM must be met, but some have more stringent requirements and additional requirements must also be met.
The suitability requirements are stricter than those in Appendix FM in relation to criminality thresholds.
Those who have been convicted of a criminal offence, in the UK or overseas, and have been sentenced to a period of imprisonment of 12 months or more will be subject to a mandatory refusal.
They will therefore never be able to obtain ILR on this route. The suitability criteria under Appendix FM, makes refusal mandatory where the custodial sentence is 4 years or above. Those with sentences between 12 months and 4 years can meet the suitability criteria after 15 years have passed.
Where the applicant has received a custodial sentence of less than 12 months, they will have to reside in the UK for 5 years on the basis of family or private life, after the end of the sentence, and have a continuous qualifying period of 10 years on this basis.
There are also additional suitability issues that will lead to mandatory refusal:
- Involvement in a sham marriage or civil partnership
- Use of false documents or information or deception
- Litigation debt owed to the Home Office, unless the debt has been paid
- Debt to the NHS, unless the debt has been paid, or the total value of outstanding charges is under £500
If any of the above apply, the applicant will have to reside in the UK for a continuous 5 year period on the basis of family or private life after the suitability ground has come to the Home Office's attention, and have a continuous qualifying period of 10 years on this basis.
A person who has entered the UK illegally must be refused settlement unless they have completed a qualifying period of 10 years on the basis of family or private life, or if they are a child or young adult granted on the basis of paragraph 3.1. or 4.1. of Appendix Private Life, which have different requirements as to continuous residence.
Eligibility for Settlement on the 10 Year Family Life Route
An applicant for ILR on the basis of a qualifying 10 year period as a partner or parent, or on a combination of these routes, can combine time spent on the following routes towards the 10 year qualifying period:
- Entry clearance or permission as a partner, parent or child under Appendix FM;
- Permission on the private life route prior to 20 June 2022;
- Permission outside the Rules as a partner, parent or child or on the basis of private life pursuant to Article 8 ECHR
This is a welcome change, as it gives greater flexibility than in the past to combine time spent on different routes.
It is also possible to count time on any other route that leads to settlement provided that the applicant did not enter the UK illegally and has had permission under Appendix FM as a partner or parent for at least one year.
10 Year Family Life Route Continuous Residence Requirement
A new requirement for ‘continuous residence' in accordance with Appendix Continuous Residence applies. Absences prior to 20 June 2022 when these Rules came into force won't be counted if the Applicant was granted permission after the absences.
The applicant must ensure that they are not absent from the UK for more than 180 days in any consecutive 12 month period. There are exceptions, which include absences for work, study or supporting family overseas ‘so long as the family have throughout the period of absence maintained a family life in the UK and the UK remained their place of permanent residence'.
Continuous residence is also broken by other issues, such as being sentenced to a period of imprisonment.
This is the first time that absence limits have been applicable to family life routes.
English Language Requirement for Family Life Settlement
The Applicant must meet the English language requirement showing ability in speaking and listening to level B1. This must be evidenced as specified in a new Appendix English Language. This allows applicants to rely on qualifications lower than degree level, as it can be met through a qualification in GCSE or A-Level English. It can also be met through a specified English language test or if the person is a national of a majority English speaking country.
Knowledge of Life in the UK
The Life in the UK test requirement must be met, as set out in Appendix KOL UK.
Decision, Period and Conditions of Grant
If all of the suitability and eligibility requirements based on a qualifying period of 10 years are met then the applicant will be granted settlement.
If they are not met, but the applicant is able to meet the requirements for permission to stay under Appendix FM, the application will be varied to permission to stay on that route. No additional fee will be required but the settlement fee (which is higher than the applicable fee for permission to stay) will not be refunded, and the applicant may be required to pay the Immigration Health Surcharge.
If that is requested and not paid, or a fee waiver for it is not requested and granted, the application for leave to remain will be rejected as invalid and the application fee will not be refunded. The period granted and attached conditions will be in accordance with the provisions for the relevant application in Appendix FM.
The application will be refused if the decision-maker is not satisfied that the applicant meets all the suitability and eligibility requirements for settlement on this route.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.