Guide to Article 8 Applications under the New Rules
2 August 2012
Reasons for the change?
On 9 July 2012 a new set of Immigration Rules came into force. The principal purpose as set out in the Explanatory Memorandum of the Statement of Changes (presented to parliament on 13 June 2012) was:
"To provide a clear basis for considering immigration and private life cases in compliance with Article 8 of the European Convention on Human Rights (the right to respect for private or family life). In particular, the new Immigration Rules reflect the qualified nature of Article 8, setting requirements which correctly balance the individual right to respect for private or family life with the public interest in safeguarding the economic well-being of the UK by controlling immigration and in protecting the public from foreign criminals (para 2.1)… The Immigration Rules will fully reflect the factors which can weigh for or against an Article 8 claim. The rules will set proportionate requirements that reflect the Government’s and Parliament’s view of how individuals’ Article 8 rights should be qualified in the public interest to safeguard the economic well-being of the UK by controlling immigration and to protect the public from foreign criminals. This will mean that failure to meet the requirements of the rules will normally mean failure to establish an Article 8 claim to enter or remain in the UK, and no grant of leave on that basis. Outside exceptional cases, it will be proportionate under Article 8 for an applicant who fails to meet the requirements of the rules to be removed from the UK (para 7.2)”.
Where are the new rules for Article 8?
A new Appendix to the Rules was incorporated entitled "Appendix FM: Family members" with accompanying new guidance under the Immigration Directorate Instructions ("IDI”s) Chapter 8.
This covers (i) applications to enter or remain with a family member (partner, child, relative); (ii) leave to remain following bereavement or domestic violence; (iii) those facing deportation; and (iv) leave to remain on the basis of long residence and private life in the UK.
Family Life:
Part 8 of the Immigration Rules, which covers applications to enter or remain with a family member, remains on the UKBA website pretty much as it was before 9 July 2012. Some paragraphs of Part 8 have been preserved by the new Appendix FM and others have been effectively replaced, where the replacing requirements are contained in the Appendix FM. Inserted at the beginning of Part 8 is a new section entitled "Transitional provisions and interaction between Part 8 and Appendix FM" which explains which paragraphs of Part 8 are preserved.
Paragraphs 246 to 248F in Part 7 of the Immigration Rules apply to a person applying before 9 July 2012 to enter or remain in order to exercise their rights to access to a child resident in the UK, and Appendix FM applies to these applications after this date.
Appendix FM now covers applications by bereaved partners and victims of domestic violence.
The considerations for those facing deportation are contained within Part 13 of the Rules (as amended).
Private Life:
Paragraphs 276A-276DH of the Rules (as amended) cover applications to remain on the basis of long residence and private life.
What are the requirements?
It would require more space than the limits of this article to even begin to go through the substantive requirements in each category (for highlights of some of the recent substantive changes so what follows is an overview of the structure of the requirements to be met see our previous post.
Ascertaining the requirements to be met can be confusing and will depend upon the date of application (See paragraphs 34G-I of the Rules for the determination of the date of an application or claim, which is dependent on how the application was made, e.g. by post, in person, etc.).
Family life:
However, in principle for applications by family members, bereaved partners and victims of domestic violence the applicant must now satisfy the overall requirements for the relevant category which includes (i) Suitability requirements (with prefix "S”), and (ii) Eligibility requirements e.g. language and financial (with prefix "E”). There is also some provision for exceptions but to fall within the exceptions the applicant must still satisfy the Suitability or "S” requirements.
(As an aside, the provision for an "Exception” is a confusing choice of terminology as there is now an exception provided for within the rules to the other rules, and there is likely to still be scope to argue a case amounts to an exception to the rules and even an exception to the "Exception" if relying on Strasbourg jurisprudence on Article 8).
The "Exception" states:
"EX.1. This paragraph applies if:
(a) (i) the applicant has a genuine and subsisting parental relationship with a child who-
(aa) is under the age of 18 years;
(bb) is in the UK;
(cc) is a British citizen or has lived in the UK continuously for at least the seven years immediately preceding the date of application; and
(ii) it would not be reasonable to expect the child to leave the UK; or
(b) the applicant has a genuine and subsisting relationship with a partner who is in the UK and is a British citizen, settled in the UK or in the UK with refugee leave or humanitarian protection, and there are insurmountable obstacles to family life with that partner continuing outside the UK".
All applications made under Part 8 (either as it was before 9 July 2012 or under the preserved paragraphs of Part 8 after 9 July) must now also meet the new Suitability criteria for entry clearance and leave to remain ("S-EC" and "S-LTR").
The requirements for considering Article 8 in the context of deportation are contained within Part 13 of the Rules (as amended) and apply even if the notice of intention to deport, or the deportation order was served before 9 July 2012.
They are relevant to both private and family life and state:
"398. Where a person claims that their deportation would be contrary to the UK's obligations under Article 8 of the Human Rights Convention, and
(a) the deportation of the person from the UK is conducive to the public good because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of at least four years;
(b) the deportation of the person from the UK is conducive to the public good because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of less than four years but at least 12 months; or
(c) the deportation of the person from the UK is conducive to the public good because, in the view of the Secretary of State, their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law,
the Secretary of State in assessing that claim will consider whether paragraph 399 or 399A applies and, if it does not, it will only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors.
399. This paragraph applies where paragraph 398 (b) or (c) applies if –
(a) the person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and
(i) the child is a British citizen; or
(ii) the child has lived in the UK continuously for at least the seven years immediately preceding the date of the immigration decision; and
in either case
(a) it would not be reasonable to expect the child to leave the UK; and
(b) there is no other family member who is able to care for the child in the UK; or
(b) the person has a genuine and subsisting relationship with a partner who is in the UK and is a British citizen, settled in the UK, or in the UK with refugee leave or humanitarian protection, and
(i)the person has lived in the UK with valid leave continuously for at least the 15 years immediately preceding the date of the immigration decision (discounting any period of imprisonment); and
(ii) there are insurmountable obstacles to family life with that partner continuing outside the UK.
399A. This paragraph applies where paragraph 398(b) or (c) applies if –
(a) the person has lived continuously in the UK for at least 20 years immediately preceding the date of the immigration decision (discounting any period of imprisonment) and he has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK; or
(b) the person is aged under 25 years, he has spent at least half of his life living continuously in the UK immediately preceding the date of the immigration decision (discounting any period of imprisonment) and he has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK".
Private life:
Those who have lived in the UK lawfully for 10 years are able to qualify for settlement if they meet the requirements within paragraph 276B(i)-(ii) of the Rules.
The previous 14-year-long residence route to settlement for those in the UK lawfully or unlawfully (paragraph 276B(i)(b)) of the rules was abolished on 9 July 2012.
Applications made to remain on the basis of long residence and private life other than under paragraph 276B should be made and considered under paragraph 276ADE. This is a new paragraph which states:
"276ADE. The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant:
(i) does not fall for refusal under any of the grounds in Section S-LTR 1.2 to S-LTR 1.5 in Appendix FM; and
(ii) does not fall for refusal under any of the grounds in Section S-LTR 1.6 to 2.3 in Appendix FM; and
(iii) has lived continuously in the UK for at least 20 years (discounting any period of imprisonment); or
(iv) is under the age of 18 years and has lived continuously in the UK for at least seven years (discounting any period of imprisonment); or
(iv) is aged 18 years or above and under 25 years and has spent at least half of his life residing continuously in the UK (discounting any period of imprisonment); or
(vi) is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK.
In considering applications under this paragraph, the Secretary of State shall attach less weight to private life in the UK established following refusal of an earlier application for leave to remain made under paragraph 276ADE".
All applications under paragraphs 276A-276D must now also meet the new Suitability criteria for leave to remain ("S-LTR") regardless as to whether the application was made.
How do you make an Article 8 application under the new Rules?
Article 8 applications now have to be made on a specific form, and a fee paid unless they are raised as part of an asylum claim, the migrant is in detention, removal directions have been set, in an appeal or as a response to a "one stop notice".
What type of leave is granted?
Rather than the previous regime of discretionary leave, which has now ceased, it is envisaged that a successful application under Article 8 family life will result in a period of 30 months’ leave. Before expiry, an application for further leave can be made (on the required form and with a further fee) which again, if successful, will result in another period of 30 months. If all requirements of the Rules have been met it will be possible for the third application to be for settlement or indefinite leave to remain, thus leading to settlement in a total of five years. Alternatively, if all the requirements have not been met (e.g. switching provisions) it will only be possible to apply for settlement on the fifth application thus leading to settlement in a total of 10 years.
Limited leave to remain on the basis of Article 8 private life in the UK may be granted for up to 30 months. An application for indefinite leave to remain on this basis can be made after holding limited leave on the basis of private life for a continuous period of 120 months.
