NEW GUIDANCE SEEMS TO BE A HOPE FOR OVERSTAYERS AND ILLEGAL MIGRANTS ON 10 YEARS ROUTE

The Home Office has issued a new guidance on private and family life for the application of further leave to remain in the UK. This is the first time that this kind of guidance is issued by the Home Office to their caseworkers.

 

This guidance was drafted whilst giving more weightage to the case law KO Nigeria and Rhuppiah [2018]; both cases considered the balancing exercise between family/private life and the public interest. In Rhuppiah, it was considered whether a migrant who is not fully independent financially, should be removed on these basis because she would not be able to survive in the host country (UK).

 

The Supreme Court decided that if the friends and family provided a person with some or more financial help, then that person or migrant in the UK should be considered as a financially independent. Simultaneously, the requirement of English skills should not be given weightage over the child’s best interest and family life in the UK.

 

The new guidance requires the Home Office to consider all the applications to be considered under the light of reasonableness test whilst departing from orthodox frame of mind.

On the Home Office website it clearly says;

‘This guidance tells decision makers how to deal with Article 8 applications or claims for leave to remain on the basis of family life as a partner or parent or on the basis of private life, on a 10-year route to settlement.’

‘Where the applicant falls for refusal under the rules, this will be relevant when considering whether there are exceptional circumstances which would make refusal unjustifiably harsh for the applicant.’

In previous guidance there was no separate chapter of Private Life. Merely Family Life was more highlighted. Whereas in newly published guidance the caseworker is supposed to consider the time spent in the UK, connections in the UK, social circle, character, significant obstacles for returning to the country of origin, relations in the UK, and relatives in the country of the origin and many more aspects.

It seems that the Home Office approach is going to be changed towards the article 8 claims. The new guidance looks like an invitation to all those migrants who are aiming to submit the application or never submitted any kind of application, to come forward and let the Home office consider their application under this new light.

Writer:

Fehmina Farani