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Back Guides Legalising your stay Overstayer? You might have grounds to apply for discretionary leave

Overstayer? You might have grounds to apply for discretionary leave

Learn how to regularise your legal status in the UK

worried.pngHave you overstayed your visa? Do you think you could be an illegal? Are you worried about being deported? Have you ever been detained by the Home Office or Immigration authorities? Would you like to stay in the UK legally?

If any of the questions above apply to you, then you may be somebody who has overstayed their visa and needs to regularise their legal status in the UK immediately.

Many people feel they do not have good grounds to stay in the UK. For example: they have been working illegally, have overstayed their previous visas, or simply do not want to go back to their home country for whatever reason. However, such individuals can still make an application to stay in the UK. This application may ask the Secretary of State to grant them a period of ‘discretionary leave’.

Discretionary Leave is granted outside of the Immigration Rules and often includes claims made on a human rights basis, but it can also be granted in cases where a human rights claim fails.

A discretionary leave application is just that: a person asks the Secretary of State to exercise her discretion in their favour so that they may remain in the UK.

A good discretionary leave application will seek to argue a person’s circumstances and backgrounds such as their age, length of residence in the UK, strength of connections within the UK, personal history including character, conduct and employment record, domestic circumstances, previous criminal record and nature of any offence for which a person has been convicted, compassionate circumstances and any representations received on the person’s behalf.


Case Examples

1. A Ghanaian woman enters the UK in 1999 on a 6-month Visit visa. Her visa expires and she then makes a claim for asylum but this is refused in 2000. She then marries a British citizen and makes a marriage visa application to regularise her stay in the UK. The Home Office take a long time to deal with the application and so the woman asks her local MP for help. In 2003 the woman is granted 2 years discretionary leave to remain in the UK on the basis of her marriage to a British citizen. She then extends her discretionary leave for a further 4 years (altogether 6 years) and is then eligible to make an application for indefinite leave to remain.

2. In 2006, the British aunt and uncle of an 11-year old child from Nigeria decide to keep their niece in the UK to live with them as she would have a better life than in Nigeria. In Nigeria, the little girl’s father suffers from mental illness and his wife cares for him on a full time basis. The little girl’s father suffers delusions and has attempted to harm the little girl which is why she was sent to visit her aunt and uncle in the UK on a visit visa. The Aunt and Uncle submit an application to the Home Office before expiry of the little girls visa to apply asking that she be given a settlement visa as they are her family members and intend to look after her. The Home Office refuse to give the little girl discretionary leave to remain and the refusal decision is appealed before the Asylum and Immigration Tribunal. The Immigration Judge decides that the risk of sending the little girl to Nigeria could have serious consequences on her well being and her appeal is allowed under Article 8 of the Human Rights Act 1998 and she is granted 3 years discretionary leave to remain in the UK.

3. A Zimbabwean man comes to the UK by illegal means (entry via a lorry). In 2004 he is diagnosed as HIV positive and then submits representations to the Home Office for leave to remain in the UK based on his HIV status and asking for leave to remain in the UK to benefit from the medical treatment available and improve and extend his life expectancy. The Zimbabwean man and his representations to the Home Office argues that if he is returned to Zimbabwe it is likely that he will have an early death as medical treatment for HIV in Zimbabwe is difficult to obtain, very expensive, and he would have no financial means to support himself or pay for his medication. In 2007, after a very long time awaiting a decision from the Home Office on the representation submitted, he is granted discretionary leave to remain in the UK.

4. A Mauritian man came into the UK illegally in 1997 and stayed in the UK. He has worked for many years and paid tax contributions. He has never claimed benefits and does not want to return to Mauritius as he feels the UK is his home and he has nothing to return to in Mauritius. He has also studied educational courses in the UK and is a qualified Nurse. He has not used false documents and is generally of good character. He makes an application for discretionary leave to remain in the UK after 11 years of being in the UK and he is granted discretionary leave to remain.


Article 8 of the Human Rights Act 1998

Many claims of discretionary leave may centre or rely predominantly around Article 8 of the Human Rights Act 1998. This article seeks to prohibit public authorities such as the Home Office from interfering in an individual’s right to private and family life. One of the most common grounds argued by a person is his rights under Article 8 of the Human Rights Act 1998 which provides that authorities must have respect for an individual’s private and family life. A public authority cannot intervene in an individuals private or family life except in certain instances as explained below.

Article 8 of the Human Rights Act 1998:

“Everyone has the right to respect for his private and family life, his home and his correspondence.

There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of nationals security public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”.

The Secretary of State will consider granting discretionary leave to remain in the UK after taking a decision on whether to remove an over stayer under Deportation and Administrative Removal, under Section 10 of the Immigration and Asylum Act 1999. The Secretary of State will firstly consider paragraph 395C of the Immigration Rules in deciding whether an over stayer should be deported or removed:

(i) age of the Applicant;

(ii) length of residence of the Applicant in the United Kingdom;

(iii) strength of the Applicant’s connections to the United Kingdom;

(iv) personal history, including character, conduct and employment record;

(v) domestic circumstances;

(vi) previous criminal record and the nature of any offence of which the person has beenconvicted;

(vii) compassionate circumstances;

(viii) any representations received on the person's behalf

The longer the person has been resident in the UK, then arguably the stronger the case for them to be granted leave, especially if they have formed a family life with a partner and any children who are lawfully resident in the UK owing to them having British or permanent legal status. Those individuals who have made tax contributions, never been in trouble with the police, had lengthy residence in the UK and established person/family ties should have good grounds to lodge a Discretionary Leave/Article 8 application.


Seven Year Child Concession

The seven year child concession (otherwise know as DP5/96 concession) previously allowed families to successfully apply and obtain indefinite leave to remain in the UK. The reason behind the policy was provided in a Ministerial statement of Mike O’Brien MP on24 February 1999 where he said:

“…Children who have been in this country for several years may be reasonably settled here and may, therefore, find it difficult to adjust to life abroad. In future, the enforced removal or deportation will not normally be appropriate where there are minor dependent children in the family who have been living in the United Kingdomcontinuously for 7 or more years. In most cases, the ties established by children over this period will outweigh other considerations and it is right and fair that the family should be allowed to stay here.”

However, on 9th December 2008 the Minister for Borders and Immigration (Mr Phil Woolas) abolished the seven year child concession. In his statement, the Minister said:

“The United Kingdom Border Agency is withdrawing DP5/96… The original purpose and need for the concession has been overtaken by the Human Rights Act and changes to immigration rules. The fact that a child has spent a significant period of their life in the United Kingdom will continue to be an important factor to be taken into account by case workers when evaluating whether removal of their parents is appropriate…“The withdrawal of DP5/96 and replacing it with consideration under the Immigration Rules and article 8 of the ECHR [European Convention on Human Rights] will ensure a fairer, more consistent approach to all cases involving children, whether accompanied or unaccompanied, across UKBA. Withdrawing the policy will also prevent those overstaying or unlawfully present in the UK having the benefit of a concession which does not apply to those persons who comply with the Immigration Rules and remain in the UK lawfully.”

 

The effect of the withdrawal of the seven year child concession DP5/96

The Minister’s statement on 9th December 2008 makes it clear that the withdrawal of DP5/96 is because the Government thinks it is no longer needed. The reference to the Human Rights Act1998 relates to the European Convention on Human Rights, which that Act adopts into UK domestic law. In particular, it relates to Article 8 of the Convention – the right to private and family life.

In many cases where DP5/96 would have applied, it will be possible to rely on Article 8. However, two important differences between the DP5/96 and Article 8 must be noted:

• Article 8 is not restricted to children who have been in the UK for 7 years or more.

There may be cases where a child has been in the UK for less than 7 years in which removal will not be proportionate.

• Where it is decided that removal should not proceed because of Article 8, this usually leads to a grant of 3 years Discretionary Leave. Nevertheless, under paragraph 395C of the Immigration Rules there remains power for the UKBA to grant indefinite leave to remain in cases where it would previously have granted indefinite leave to remain underDP5/96. The Minister’s statement refers to the Immigration Rules, and makes no suggestion of any intention to change the type or period of leave to be granted in these cases.

Therefore, for people who are in the UK who have overstayed their visas and have formed a relationship with a British citizen or somebody who has a permanent legal status and even perhaps had children with them, such persons have ultimately established what can be argued a family life in the UK and such persons can make an application to regularise their legal status in the UK.

It is very strongly urged that legal advice is sought in instances where an individual needs to regularise their legal status rather than them remaining in the UK without legal status as making an application to the Home Office will provide them with a level of protection as generally, the Home Office will not remove an individual whilst they have an application pending consideration at the Home Office. Currently, there is somewhat of a lengthy delay in the Home Office assessing such applications due to a backlog of applications received by them over the years.


For questions regarding the subject covered in this guide,
PLEASE REGISTER IN OUR FORUM and post your question under the appropriate category (‘OVERSTAYERS’).

Greenfield Solicitors will answer them regularly.

ALL COMMENTS WILL SHORTLY BE REMOVED!

 


Guide published 15 July 2009.


 

The above article is meant to be relied upon as an informative article and in no way constitutes legal advice.

For legal advice regarding your case, please contact Greenfields Solicitors on 020 8884 1166 for a Consultation with a Solicitor.


READ MORE:

When to apply for Discretionary Leave and Indefinite Leave to Remain

Visa Appeals: The Process