PERSONAL IMMIGRATION LAW
PRIVATE & FAMILY LIFE
FAMILY LIFE AS A PARTNER OR PARENT
Family life as a parent or partner is amongst the most common type of application for leave to remain under the Immigration Rules along with leave on private life grounds.
Under Appendix FM of the Rules, families can seek to stay together in the United Kingdom if, for example, they are married to a settled / British person or they are the parent of a British / settled child or a child that has been in the United Kingdom for a period in excess of 7 years.
SMA Solicitors understands the importance of preserving family life. The importance of these applications should not be underestimated given that the consequences of a mistake can mean forced relocation to another country or separation of families.
We are here to help with all of your family immigration application needs and are able to advise you on the best course of action if your application has been refused. Remember, in some cases, a challenge by way of an appeal or judicial review may be the best way forward whereas, in other, a fresh application may provide a cheaper, faster and safer route to success.
Family life as the partner of a British / settled person
The basic requirements to be granted leave to remain as the partner of a British citizen / settled person are as follows:
- Your partner / spouse must be British, settled in the United Kingdom, or have refugee status and humanitarian protection;
- You should be married, in a civil partnership, have lived together in a relationship akin to marriage for at least 2 years, or be a fiancé intending to marry within 6 months of arrival to the United Kingdom;
- You should have the required English language qualifications to show that you meet the English language requirement;
- You should be able to financially support yourself and your dependents.
The above are the basic requirements for the grant of leave as a spouse / partner. However, the Rules carry various complicated demands for evidence that must be produced in certain forms. If you do not meet the exact requirements of the Rules, there may be other way in which you can obtain leave to remain in this category which include:
- You have a child who has spent 7 years in the United Kingdom and it would be unreasonable to remove that child from this country;
- There would be very significant obstacles to you and your partner continuing your family life in another country;
- There are exceptional circumstances that mean that your removal would breach your human rights.
We understand that the Immigration Rules can be daunting, and our job is to make them as easy and understandable as possible. We know the Rules can often feel like a trap and the smallest mistake can cost you your application and your happiness. We are here to guide you to avoiding those traps and ensuring that the application has the best possible chances of succeeding.
APPLICATION FOR LEAVE TO REMAIN / ENTER AS A PARENT
If you are the parent of a British / settled parent, the general requirements for leave to remain are:
- Your child is under the age of 18 or was under the age of 18 when you were last granted leave to remain and is not now leading an independent life;
- They must be British, settled or having lived here for 7 years and it is unreasonable for them to leave;
- You need to have sole or shared parental responsibility over your child. If you share responsibility, the other parent must not be your partner and must be either British or settled in the United Kingdom;
- You must have the required knowledge of English and the qualifications to prove it;
- You must be able to financially support yourself without claiming public funds;
- In the event you do not meet the above requirements, leave may still be granted if it would be unreasonable for your child to leave the United Kingdom / against their best interest.
Private life applications are dealt with under paragraph 276ADE of the Immigration Rules are designed to be a recognition of your private life in this country. Generally, the requirements for a visa under this route are:
- You have lived in the United Kingdom for a continuous period of at least 20 years;
- You are under the age of 18, have lived here for more than 7 continuous years and it would be unreasonable to expect you to leave the United Kingdom;
- You are between the age of 18 and 25 and have spent at least half of your life living continuously in the United Kingdom;
- You are over the age of 18, have lived here for less than 20 years but there are “very significant obstacles” to your reintegration to your home country.
If you would like to make an application under any of these routes, SMA will be happy to advise you on the evidence that you will require and the submissions that need to be made to the Home Office. The better the quality of your evidence and written submissions, the more chances you have of succeeding.
For example, many of clients who approach us have been in the United Kingdom for over 20 years – meaning they qualify under paragraph 276ADE of the Immigration Rules – however, those clients have been here illegally and do not have many documents to prove they were here continuously for such a long time. SMA’s approach to such applications is to carefully and meticulously sift through the evidence you provide, decide what evidence will be helpful and, where evidence does not exist, to draft extremely detailed submissions / representations to the Home Office explaining why the evidence does not exist / what else you are relying on.
ADULT DEPENDANT RELATIVES
Adult dependant relative (ADR) applications have come under the spotlight following the government’s decision in 2012 to make the application much harder. As a result of the changes to the Rules, it is more important than ever that an application for an ADR is done with the greatest of care. ADR applications are made for relatives – usually elderly parents – by their British / settled seeking to have them come to the United Kingdom. The norm is that ADR applications are made in the saddest and most compelling of circumstances where these relatives have health issues, can no longer care for themselves and reasonable alternative care arrangements are not available.
Under the current version of the Rules, the broad requirements for an ADR application are as follows:
- You (or, if you are the relative in the United Kingdom, your applying parent) must be outside of the United Kingdom;
- The relative in the United Kingdom must be a parent, son or daughter, grandchild or sibling who is living permanently in the United Kingdom as a British citizen, with settlement, refugee status or humanitarian protection;
- The Applicant needs long term care to carry out every day personal and household tasks due to illness, disability or age;
- The care that is needed is not available or affordable in the country they live in;
- The person that they are joining in the United Kingdom will be able to support, accommodate and care for them without recourse to public funds for at least 5 years;
- The Applicant is at least over 18.
If a visa in this category is successful, you will be granted indefinite leave to enter the United Kingdom.
However, over the years we have seen the Entry Clearance Officer refuse applications made by family members without legal support where the reasons for refusal could not have been anticipated by members of the public. Common reasons for refusing an ADR application include:
- Inadequate evidence was provided that care could not be purchased in the home country, for example by using live in carers;
- There are other family members capable of caring for the applicant in their home country;
- The applicant had lived along with their illness for a number of years and there is no reason why they cannot continue to do so.
At SMA we understand that these reasons for refusal are very often wrong and do not reflect real life. The key to avoiding your application being refused for these reasons is to provide as much evidence as possible to counter any concerns a decision-maker may have. SMA works closely with a team of experts around the world and in the United Kingdom who have medical and local expertise to be able to produce respected and detailed reports of the situation in different countries including on subjects such as the availability of care.
If you or your loved one are in need of care that is not being provided in your home country and you wish to apply for leave to enter as an adult dependant relative or if you have had a refusal of an ADR application that you wish to challenge, please get in touch with SMA solicitors who will guide evaluate your application, the evidence and any decision in your case. We understand the unquestionable importance of family life and the pain of seeing a loved one in desperate need of support on the other side of the world and we are here to help.
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