The government has recently published a very welcome Home Office concession, which will allow certain young people who were born or brought up in the UK without immigration status to be eligible to apply for Indefinite Leave to Remain (ILR) in the UK after five years of lawful residence, rather than the normal ten years route.
Traditional 10 Year Family and Private Life Route to ILR
Under the current Immigration Rules, an undocumented migrant can apply for leave to remain in the UK on the basis that it would otherwise disproportionately interfere with their Private Life, as protected under Article 8 of the European Conventions on Human Rights. This is provided for under Immigration Rules part 7, with one of the sections (Paragraph 276ADE(1)(v)) specifically catering for people aged 18-24 inclusive, who have spent half of their life living continuously in the UK, to apply for permission to stay, which is normally granted for 30 months. The applicant is required to continually extend this leave until they complete 10 years of lawful residence to qualify for ILR/Settlement – this is what is called the ten-year route to settlement.
Why the Young Adult Consession?
The grant of 10 years route visa for a person who, due to no fault of their own, has ended up in the UK without a valid visa has been criticised as being grossly unfair to young people. They have to continually apply for a very expensive visa and wait for a long time to be granted settlement, which in turn interferes with their life prospects.
This serious injustice has recently been highlighted by a BBC Program aired in May this year and several charity organisations have also been campaigning against these rules, which seems to punish young people for their parent’s noncompliance with immigration law.
The Home Office finally seems to have acknowledged this and states in a statement concession that:
“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. “Concession to the family Immigration Rules for granting longer periods of leave and early indefinite leave to remain
Version 1, Published for Home Office staff on 21 October 2021,
The idea behind the probation period of 10 years is actually to serve as a penalty for those who are on the route having previously not complied with the rules e.g. by overstaying their previous visa. This is not justifiable for a person who came to the UK as a child or was born here and had no control over their parents’ actions.
What are the basic eligibility requirements for the Young Adult consession?
To be considered under this new concession one must:
- Be aged between 18 years and 25 years
- Have spent at least half of their life living continuously in the UK
- Either have been born in the UK or have entered the UK as a child
- Have held a visa for at least five years with limited leave; and
- Be eligible for further leave to remain under the normal 10 year Private Life route (under paragraph 276ADE(1) of the Immigration Rules) and have made an application under those rules.
Discretionary points for the caseworker to consider
From the published guide it is clear that the application for and grant of this concession are not a right, but rather one left at the discretion of the Home Office caseworker considering the application, with a non-exhaustive list of factors that the caseworker should consider, including:
- The person’s age when they arrived in the UK.
- The length of their residence in the UK (including unlawful residence).
- The strength of their connections and integration to the UK.
- Whether unlawful residence in the past was the result of non compliance on the part of the applicant or their parent/guardian whilst the applicant was under the age of 18.
- Efforts made to engage with the Home Office and regularise status.
- Any leave currently held and the length of their continuous lawful leave.
- Any period of continuous leave held in the past.
- Whether (and the extent to which) limited leave to remain will have a detrimental impact on the person’s health or welfare.
Example of a potential application:
Juan came to the UK from St Lucia with his parents at the age of 6. Unfortunately, a few years later his parents’ visa expired and they became undocumented. At the age of 14 his parents regularised their stay in the UK and Juan was granted Leave to Remain under the 10-year private life route. He is now aged 20 and under the current rules would be required to extend his visa every 2 and a half years until the age of 24, when he would have spent 10 years lawful residence in the UK.
However, under the Young Adult concession, since he is over 18 but under 25 years old and has already spent half. of his life in the UK with valid leave to remain for the last 6 years, he would be eligible to request that his application be considered for an early grant of ILR. The request should of course carefully outline how he meets all the requirements of the concession and try to highlight the relevant points of consideration that goes to support him being granted ILR under this policy.
How to make an application under the Young Adult’s Concession
It is notable that there is no separate application form i.e. ILR for this concession, but instead one has to make an application under the normal rules and make a specific request that the case should also be considered under this concession for ILR. providing reasons as to why they qualify.
It would therefore be prudent that an applicant’s UK Immigration Solicitor makes adequate legal submissions to accompany the application, particularly addressing the discretional factors that the caseworker needs to consider.
The guidance does state that the caseworker has the discretion to consider an earlier grant of ILR, even when this has not been specifically requested, where the applicant is clearly eligible to be considered as a concession. However, it notes that this is not a mandatory requirement in all cases, thus if you want to rely on this concession, specifically ask for it when you make the application and make your case as to why you qualify.
What happens if you don’t meet the concession?
For those who don’t meet the requirements of a 5-year route, the caseworker will normally state in the decision letter why the outcome has been reached and their application would then be considered under the normal 10-year route, with a grant of 30 months visa at a time where they can show that “it would be unreasonable for a relevant child to leave, there are insurmountable obstacles to family life with a partner outside of the UK, or there are exceptional circumstances.”
It is notable that, as this is a concession policy rather than an amendment to the Immigration Rules, the failure of the caseworker to consider or to grant ILR under the concession is not an appealable immigration decision, although it may be challengeable by way of Judicial Review in certain circumstances.
Punitive measures remain, but with exceptions added
The Home Office confirms that the normal 10-year route remains to be the default for most cases and that those persons who don’t meet the 5 years concession for young adults requirements should not have an unfair advantage over other migrants lawfully staying in the UK, who would ordinarily qualify for settlement after 10 years under long resident rules:
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