The change of rules in Long residence provision after 9 July 2012 is not totally bleak for people who have spent less than 20 years in the UK. Rule 276ADE (i) and (iv) in part 7 of the Immigration Rule provide requirements to be met by an applicant for leave to remain on the grounds of private life that at the date of app
However this is subject to some qualifications that on the date of application the applicant is not subject of a deportation order; the presence of the applicant in the UK is not conducive to the public good; applicant has not failed without reasonable excuse to comply with a requirement to, attend an interview, provide information, provide physical data, or undergo a medical examination or provide a medical report.
When considering whether the presence of the applicant in the UK is not conducive to the public good any legal or practical reasons why the applicant cannot presently be removed from the UK will be ignored. The application will be refused where whether or not to the applicant’s knowledge false information, representations or documents have been submitted in relation to the application (including false information submitted to any person to obtain a document used in support of the application) or there has been a failure to disclose material facts in relation to the application.
The application will also be refused if one or more relevant NHS body has notified the Secretary of State that the applicant has failed to pay charges in accordance with the relevant NHS regulations on charges to overseas visitors and the outstanding charges have a total value of at least £1000.
There are two limbs of these rules, one is the suitability requirements as explained above and the other is the proving lack of ties. In determining whether the person has ‘no ties (including social, cultural or family)’, the Home office considers the entirety of the applicant’s background.
If the applicant has a connection under any of the social, cultural and family headings this is sufficient to demonstrate that ties exist.
In making the assessment, relevant factors include, but are not limited to: language, cultural background, family, friends and social network etc.
When considering the language factor the Home Office considers whether the applicant speaks an official language of their country of origin, or a language that is commonly understood in parts of that country. For these purposes, fluency is not required – an ability to communicate competently with sympathetic interlocutors is sufficient.
With cultural background they consider evidence of the applicant’s exposure to and level of understanding of the cultural norms in the country of origin. Where the person has spent their time in the UK living mainly amongst a diaspora community from their country of origin then it may be reasonable to conclude that they have cultural ties with that country even if they have never lived there, or have been absent from that country for a lengthy period.
Length of time spent in the country of origin is another indicator of ties with the place where the applicant will have to go if removed from the UK. Where the applicant has spent a considerable period living in the country of origin, it will be difficult for them to demonstrate that they have no ties with that country.
The Home office usually expects that an applicant who has extended family in their country of origin should be able to turn to them for support to help them to integrate into society on return. These need not be close blood relatives if the applicant has friends and other contacts to whom they could turn for support. While considering this the caseworker will notice whether the applicant or their family have hosted visits in the UK by family and friends from their country of origin.
Up to this point it looks very difficult to satisfy these requirements for almost all of the potential applicants hoping to benefit from this change. However, if the applicant does not meet the requirements of the rules the Home Office will consider whether there are any exceptional circumstances which would make refusal and the requirement for the applicant to leave the UK a breach of Article 8. Whilst all cases are to some extent unique, those unique factors do not generally render the case exceptional.
A case is not exceptional just because the private life rules in paragraph 276ADE have been missed by a small margin. The Home Office will determine whether removal would have such severe consequences for the individual that refusal of the application and removal from the UK would not be proportionate given the nature of their private life.
Finding such exceptional circumstance will always be a case by case assessment. If you have been disappointed with the Change of rules in July 2012 and think that you have been prevented to make a long residence application, please contact us for advice and assessment of your individual circumstances and you might become a beneficiary of this change.