New Home Office guidance is now available concerning when UK Visas and Immigration will consider granting early settlement (also known as indefinite leave to remain) and/or longer than usual periods of temporary status in family or private life routes. It is a short document (only 7 pages) & quickly states no intended large policy change:
…settlement in the UK is a privilege, not an automatic entitlement. Unless there are exceptional reasons, the expectation is that applicants should serve a probationary period of limited leave before being eligible to apply for ILR.
However, that quote does not fully reflect the importance of this new guidance. The Home Office refers to a “concession” for young adults, meaning a policy to be exercised wherever specific criteria are met. For applicants to whom this applies, that is significant.
The standard position for most applicants (eg ‘normal’ partner applications) is that they will qualify for permanent permission to remain in the UK after 5 years. This is usually two grants of 2.5 years’ status. Some applicants (eg those who cannot satisfy all usual requirements but still have a compelling case) must complete 10 years instead, broken into 4 individual grants of 2.5 years each. These additional applications considerably increase the cost of the road to settlement.
The new guidance documents has the potential to really shake things up for those that qualify:
However, for some cases the public interest factors which underpin the 10-year settlement policy – namely, the need to serve a longer probationary period before qualifying for settlement, and the principle of encouraging lawful compliance – may be less relevant. In particular, this may be the case for those applicants who were either born in the UK or entered as children (below the age of 18), but are now young adults (aged 18-24), who cannot be considered responsible for any previous noncompliance with immigration laws and are fully integrated into society in the UK. For these individuals it will not usually be proportionate to expect them to have to complete a longer (10-year) route to settlement. Where that is the case, they should be able to settle after 5 years’ continuous leave.
Note the limited application of the concession, restricted only to young adults who meet specific criteria. That excludes lone child applicants or children/young adults who have a carer sponsored under usual family rules:
They can be expected to continue to be granted leave in line with their parent, guardian or family member on who they are dependent.
There are specific criteria an applicant must meet to fall within this new concession:
1. Be aged 18-25 & have spent at least 50% of their life so far in the UK
2. Have been born in the UK or entered as a child
3. Have held status in the UK for at least 5 yrs
4. Be eligible for a further extension of that status
Where the criteria are met, UK Visas and Immigration will conduct a case-by-case assessment of whether early settlement should be approved. Relevant factors include overall UK residence, age at UK entry, strength of UK connections, etc:
Where one or a combination of these factors (at page 6) apply, a decision maker should consider the claim in the round and whether it remains proportionate to expect the applicant to have to complete a longer (10-year) route to settlement. Taken together, these factors may form a particularly exceptional or compelling reason to grant leave for a period longer than 30 months or ILR.
To be considered for longer than 2.5 years’ temporary leave or permanent status in the UK, the applicant should usually request it. Remember that settlement applications are more expensive and may involve extra requirements, such as an English test. There will be general discretion for the Home Office caseworker to consider an applicant for longer than 2.5 years’ status or settlement even where it has not been requested, but this is not essential and applicants would be better making a well-supported request themself.
There is also general discretion where the concession criteria do not apply:
For all other applications for longer periods of leave or ILR the existing policy remains in place and applicants will be required to demonstrate particularly exceptional or compelling reasons to grant leave for a longer period or ILR.
This wider discretion is better covered in the larger family/private life Home Office guidance document here (page 82). The general policy is not generous, so success will be rare:
There is discretion to grant a longer period of leave or ILR outside the rules where there are other particularly exceptional or compelling reasons to do so. There must be sufficient evidence to demonstrate the individual circumstances are not just unusual but can be distinguished to a high degree from other cases to the extent that it is necessary to deviate from a standard grant of 30 months’ leave to remain.
While no examples are given of when it will be appropriate to exercise discretion, a clear example is citied of when no discretion will be applied: “An example of where it would not normally be appropriate to grant ILR might be because the person would like to qualify for a student loan to go to university and isn’t currently eligible.”
So, for anyone falling outside the confines of the new concession, accerlerating their journey to UK settlement will remain very difficult. For an applicant who can meet the 4 qualification criteria and has compelling factors in their favour, this represents a welcome opportunity to secure permanent status in the UK up to 5 years earlier than expected. That is a very expensive speed bump to have been removed from their route.