The introduction of the Appendix FM and Paragraph 276ADE of the Immigration Rules HC395 are part of the Home Office “Human Rights” Application. At ICS Legal we acknowledge the preparation that you and your family would need to make, to submit an application under this route.
Grounds of application on family & private life
The purpose of the new formed immigration rules was to allow a person to apply for leave to enter or remain in the UK, on the basis of their partner or as a parent. Consideration would be given in line with Article 8 (right to family and private life of the European Convention on Human Rights (ECHR).
The protection of both family & private life is under both the European Convention of Human Rights (ECHR) and domestic law. Right to family life is guaranteed under Article 8 of the ECHR, and the Home Office must demonstrate their reasons to interfere with that right.
Further to that, Article 12 of the ECHR provides the protection to a person with a right to marry in the UK and to found a family.
Background to Appendix FM of the Immigration Rules
The policy was introduced on the 9th of July 2012 with aim to allow a person to apply for leave to enter or remain in the UK on the basis of a person’s right to family life in the UK.
The right to family life is specifically protected by both Article 8 and 12 of the ECHR. Appendix FM considers the best interest of a child. Section 55 of the Borders, Citizenship and Immigration Act 2009 must be given consideration on a family & private life application, where the decision impacts children. Further to that Article 3 of the UN Convention on the Rights of the Child requires the Home Office to demonstrate that the primary consideration of a child’s best interest has been considered.
The Immigration Act 2014 received Royal Assent on 14 May 2014, whereby since 28th of July 2014, the Home Office will consider the public interest arguments on all applications based on family and private life. Both the Tribunal & Courts must give due weight to the public interest whenever an application based on family and private life is lodged.
Family life with a partner
Both Article 8 and 12 of the ECHR does not just apply to the traditional idea of families based on marriage but this also extends to other forms of relationship, such as un-married partners.
The Home Office is under an obligation not to interfere with family life or make the immigration rules as the grounds to refuse leave to remain, and must always demonstrate that their decision is fair & transparent.
Whenever an application is lodged based on Appendix FM of the immigration rules, the following requirements needs to be met:
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You and your partner must demonstrate that you are in a genuine and subsisting relationship with the intention to live together in the UK permanently.
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Your partner must be in the UK and is settled.
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You and your partner must demonstrate that you can be supported financially in the UK and have adequate accommodation.
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Meet the suitability of leave to remain in the UK.
This route of application is usually made by a person who cannot satisfy the full requirements of the partner visa route. This may include but not limited to, the person not holding valid leave to remain, cannot meet the financial test, overstayed their current visa, to name some of the instances whereby an application will need to be lodged under this category.
Whilst a person have a right to family life in the UK, that itself would not sufficient to meet the high threshold set out and in each application will need to be considered on their own merits.
Family life with children
Appendix FM has introduced a new category, whereby a parent of a child in the UK is eligible to lodge an application, which is also treated as a family based application. The application considers the best interest of a child and the parent must demonstrate that the following requirements can be met:
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You must demonstrate that you have a genuine and subsisting relationship with a child under the age of 18 years.
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The child must be in the UK unless the child is joining you in the UK.
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The other parent of the child will need to be in the UK unless you hold sole parental rights.
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Where the application is based on the child, he or she must be British, lived in the UK for 7 years or is settled in the UK.
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The child cannot be cared or supported by the other parent.
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There are strong grounds of family life between you and the child.
Private life application
Private life is part of Article 8 of the ECHR and has now been incorporated as part of the immigration rules namely part 7. The European Court has given a broad interpretation to private life based application, and held that it would be too restrictive to limit the notion of a person’s private life.
In all applications, a person must meet the suitability of leave to remain requirements.
First of all, if a person has lived in the UK for 20 years, the Home Office is likely to grant leave to remain for a period of 30 months. Information as well as evidences related to the residency would need to be provided.
Where a person have not lived in the UK for more than 20 years, then you must demonstrate that you have established a life in the UK, does not have any social, cultural or family ties to the country of return.
Legal representation for the family and private life application
Your legal representation will form a crucial part of your application for leave to remain in the UK. We will assess your application, advise you on the evidences required and also prepare the application, to ensure that the application is not refused.
At ICS Legal, we value our clients and always put you first. We listen to you carefully, explaining how we will prepare your application and what merits the application will have including all risks associated to that. By using our knowledge and experience, we prepare a good immigration application. We are passionate about providing successful outcomes on all our applications we submit including the legal advice we provide.
In doing this, we create and build a strong & long lasting relationships with our clients that are primarily built on trust. We believe a good UK Immigration Lawyer is approachable, innovative and open, with your best interest at heart of what we do.
For more information speak to one of our UK Immigration Lawyers on 0207 237 3388 or you can email us on info@icslegal.com.
