English Language Requirements
The applicant who wish to apply for further leave to remain in the UK will be required to satisfy the English language requirements at A2 level. This requirement applies to applicants who completed 30 months in the UK on a 5-year route to settlement either as a partner or a parent. This rule will come into force on 1 May 2017. Please note, for those applicants whose expiry date is before 1 May 2017, the application will be assessed in accordance with the rules in force before 30 April 2017.
False Representations or failure to disclose material fact
Applications made on or after 24 November 2016, the following merits are now considered when assessing the application whether the applicant has made false representations or has failed to disclose any material fact in the past, specifically: “The applicant has made false representations or failed to disclose any material fact in a previous application for entry clearance, leave to enter or remain or a variation of leave, or in a previous human rights claim; or did so to obtain from the SoS or a third party a document in support of his/her application.
Children/minimum income thresholds
The applications in relation to children made on or after 24 November 2016, will only be successful for entry clearance if the parent applies for the leave or already has obtained one. In addition, the minimum income thresholds have been amended in respect to application that include dependent children of the applicant’s parent’s partner as well as the applicant’s parent.
For applications decided on or after 24 November 2016, the NHS debt has been lowered to £500 from the initial £1000 as a discretionary basis for unsuccessful applications for reasons of suitability.
For further details and queries please contact us directly.
The case was held in the High Court of Justice (Queens Bench Division) on the 19th April 2016 between the Claimant (BritCits) and the Defendant (Secretary of State for the Home Department). The Judge Mr Justice Mitting: Section 1(4) of the Immigration Act 1971 provides that the rules laid down by the Secretary of State in regards to the practice to be followed for regulating the entry into and stay in the United Kingdom shall include provision for admission to individuals coming for the purpose of taking employment, or for purposes of study, or as visitors, or as dependants of persons lawfully in or entering the United Kingdom.
Lord Dyson in R (Munir) v Secretary of State for the Home Department  stated: “Until 9 July 2012 Rule 317 of the Immigration Rules identified categories of persons eligible (parents, grandparents aged 65 and over or older and younger adults in exceptional circumstances) who were financially dependent on relatives settled in the United Kingdom. Furthermore, parents and grandparents aged 65 or over had to rely financially on their relative settled in the United Kingdom and not their relative in their home country. The rule also required that the adult dependent relative would be supported with no help of public funds in the United Kingdom.”
From 9 July 2012, the right to apply for indefinite leave to remain has been abolished. The right to apply for indefinite leave to enter is now contained in section E-ECDR 2.1 to 2.5 of Appendix FM to the new rules. They provide:
E-ECDR.2.1. The applicant must be the-
(a) parent aged 18 years or over;
(c) brother or sister aged 18 years or over; or
(d) son or daughter aged 18 years or over,
of a person (‘the sponsor’) who is in the UK.
E-ECDR.2.3. The sponsor must at the date of application be-
(a) aged 18 years or over; and
(b) (i) a British Citizen in the UK; or (ii) present and settled in the UK; or (iii) in the UK with refugee leave or humanitarian protection.
E-ECDR.2.4. The applicant or, if the applicant and their partner are the sponsor’s parents or grandparents, the applicant’s partner, must as a result of age, illness or disability require long-term personal care to perform everyday tasks.
E-ECDR.2.5. The applicant or, if the applicant and their partner are the sponsor’s parents or grandparents, the applicant’s partner, must be unable, even with the practical and financial help of the sponsor, to obtain the required level of care in the country where they are living, because-
it is not available and there is no person in that country who can reasonably provide it;
or it is not affordable.
This particular case concerns sponsors (British citizens) and their parents who reside abroad and are at least to some extent financially dependent on their British citizen sponsor. Sections E-ECDR 3.1 and 3.2 contain financial requirements. The applicant must be adequately supported and accommodated by the British sponsor without dependency to public funds and that a British citizen sponsor will provide a written undertaking to that effect for five years.
In this particular case the claimants are a United Kingdom charity which represents the interests of sponsors as well as applicants affected by the “Adult Dependent Relative” sections of the new regulations and to campaign to revoke or alter these rules. The claimants argue that sections E-ECDR 2.4 and 2.5 are not lawful on one or all overlapping grounds:
1) They are outwith the rule making power section 1.4 of the 1971 Act. They are arbitrary and not reasonable;
2) They are incompatible with Article 8 of the European Convention on Human Rights (right to a private and family life);
Declarations to this effect and an order quashing the relevant sections are sought in the case of the third ground under section 8(1) of the Human Rights Act 1998.
The first ground is that the rules are not within the rule-making power, meaning they are ‘ultra vires’. The test is not of concern, however the Judge as a matter of law must decide what the aim of the statute is. If the Immigration rules does not reflect the objective of the statute, the Judge must point that out and grant a relief. The aim or objective of the statute has been identified by Lord Dyson in R (Munir) v Secretary of State for the Home Department at paragraph 26: “… the Act was intended to define the power to control immigration and say how it was to be exercised.”
The second ground of challenge is that the new rule is not reasonable. This challenge is not and cannot be based on Wednesbury unreasonableness, because the Immigration rules acquire their authority from the Parliament and received Parliamentary support and therefore a narrower test is applied, see Kruse v Johnson  2 QB 91.
The final ground of challenge is Article 8. Lord Bingham defined family life in case Huang v Secretary of State for the Home Department  2 AC 167. The new Immigration rule certainly would affect family life of many elderly parents of individuals settled in the UK and also affect the family life of those British citizens of their spouses and children. The crucial issue under Article 8 is whether the interference is justified meaning whether it is proportionate. Therefore, it can be argued that the proportionality of the rule should be judged and not only its application to the facts.
The Judge Mitting however stated: “.. If it has independent weight, it must itself be lawful and so, of necessity, proportionate. Free of authority, therefore, I would not have hesitated to consider the lawfulness on the ground of proportionality of the rule and, if I had found it to be disproportionate and so unlawful, to declare it so. However, I believe that I am bound by authority to do otherwise.”. the Judge relied on the case MM (Lebanon) v SSHD  1 WLR 1073 which suggested that a rule could be struck down but on the other hand that rules did not guarantee compliance with Article of the Convention. Judge Mitting dismissed the claim for Judicial Review and gave permission to appeal the decision.
The Appellant, a Jamaican national, arrived in the UK in 1996 when he was 11 years’ old on a visitor’s visa and had been living in the UK for 11 years. The Appellant joined his mother who was married to a British Citizen in the UK. The Appellant extended his stay on 31st December 1997. In February 1997, the Appellant’s mother instructed an Immigration Consultant to make an application for Indefinite Leave to Remain on his behalf, however the Immigration Consultant failed to do so. Consequently, from 1st January 1998 the appellant was in the UK illegally.
In the meantime, the Appellant went on to attend school and obtained his GCSE’s, followed by college obtaining BTEC qualifications. The Appellant also attending University but could not complete his course due to the fees of the University. On 10 December 2007, the Appellant was issued with a deportation order, which he appealed in January 2008 but had his appeal dismissed.
In June 2009, the Appellant began a relationship with a British Citizen and had a child the same year. He made a further fresh application requesting his deportation order to be revoked but his application was refused in July the same year. The Appellant lodged an appeal, which was granted in October 2009, the appeal was allowed under Article 8 ECHR. The Secretary of State appealed the decision and the appeal was granted in 2010. The First-tier Tribunal (FTT) dismissed the appeal in January 2011 on the following basis (N (Kenya) v Secretary of State for the Home Department  EWCA Civ 1094) (please note that the appellant had been convicted for the offence of selling Class A drugs and for robbery):
(a) the appellant (who had a previous conviction for robbery in the course of which the victim was threatened with a knife) posed a significant risk to the community ;
(b) neither the appellant’s mother nor Ms Alexis had sufficient influence over him to prevent his re-offending;
(c) the offence for which he was sent to prison was serious and would have attracted a sentence of several years’ imprisonment but for the guilty plea;
(d) accordingly, it was reasonably open to the respondent to make a deportation order in respect of the appellant ;
(e) the appellant had never lived with Ashton and was not likely to do so in the immediate future; the Tribunal had not been given a full picture of the appellant’s relationship with his son and was not satisfied that that it outweighed the legitimate aim of protecting the public from him ;
(f) the relationship between the appellant and Ms Alexis was tenuous and his removal and the consequent disruption of their relationship would not involve a disproportionate interference with the Article 8 rights of either of them ; in any event, it would not be unreasonable to expect Ms Alexis to move to Jamaica with the appellant; Ashton was young and could adapt to life in Jamaica ;
(g) the appellant’s offences were serious and he posed a risk of further offending ;
(h) the appellant’s relationship with his half-siblings was not so strong that his removal would involve a disproportionate interference with his rights under Article 8 ; and
(i) there was little evidence that the appellant had worked or that he had significant friendships in this country that would be disrupted by his removal .
The decision of the FTT failed to consider the best interests of the Appellant’s child and members of the Appellant’s family. It also failed to consider the nature of the Appellant’s offending and whether the conviction was so serious to justify the removal of the Appellant, as required by the ECHR in Maslow v Austria.
In determining the case, the Judge applied the Maslow principle as follows:
(i) the nature and seriousness of the offence(s) committed by the appellant;
(ii) the length of the appellant’s stay in the country;
(iii) the period of time that has elapsed since the offence was committed and the appellant’s conduct during that period;
(iv) the nationalities of the persons concerned;
(v) the appellant’s family situation;
(vi) whether any spouse or partner knew about the offence at the time he or she entered into the relationship;
(vii) whether the appellant has children, and if so, their ages;
(viii) the seriousness of the difficulties the spouse or partner is likely to encounter in the country to which the appellant is to be removed;
(ix) the best interests and wellbeing of any children;
(x) the strength of the social, cultural and family ties with the host country and the country to which removal is to be made.
The Judge took into account the age that the Appellant first entered the United Kingdom and the extent to which he was raised and educated in the UK. The Appellant spent the formative part of his youth in the UK. Therefore, strong arguments needed to be presented in order to justify his removal, even if the person is not lawfully present in this country (JO (Uganda) v Secretary of State for the Home Department  EWCA Civ 10 paragraph 31.
The Maslow principle was applied and given consideration, particularly the Appellant’s relationship with his wife and child. Consideration was also given to the nature and seriousness of his conviction. However, the decision of the FTT did not have regard to factors such as the Appellant’s age when he first arrived in the UK, his length of stay or his social, cultural and family ties in the UK. Therefore, it was found that the decision of the FTT was flawed and the appeal was allowed and remit the matter to the Upper Tribunal with a direction that there be a fresh hearing before a different constitution.
The case of PD and Others (Article 8 – conjoined family claims) Sri Lanka  UKUT 00108 (IAC) is a good example of when the Secretary of State considered Article 8 ECHR applications as a family unit, where included is a child under 18 who has been residing in the UK for a continuous period of seven years. Therefore, it would not be reasonable to expect the applicant (a child) to leave the UK.
In the case of Treebhawon and others (section 117B(6))  UKUT 00674 (IAC), section 117B(6) of the 2002 Act was considered and analysed and it was found that there should transparency by the Upper Tribunal as follows:
“20. In section 117B(6), Parliament has prescribed three conditions, namely:
(a) the person concerned is not liable to deportation;
(b) such person has a genuine and subsisting parental relationship with a qualifying child, namely a person who is under the age of 18 and is a British citizen or has lived in the United Kingdom for a continuous period of seven years or more; and
(c) it would not be reasonable to expect the qualifying child to leave the United Kingdom.
Within this discrete regime, the statute proclaims unequivocally that where these three conditions are satisfied the public interest does not require the removal of the parent from the United Kingdom. Ambiguity there is none.
Moreover, the SoS guidance stipulates the following:
“The longer the child has resided in the UK, the more the balance will begin to swing in terms of it being unreasonable to expect the child to leave the UK and strong reasons will be required in order to refuse a case with continuous UK residence of more than seven years.”
To conclude, under the section 117B(6) of the 2002 Act: the public interest does not require the removal of parents or parent of qualifying child by virtue of his/her length of residence in the United Kingdom, if they all have a genuine and subsisting parental relationship with the child. Thus, the test of exceptional circumstances applied under outside the Rules.