Concessions - Leave to Remain Outside the
Immigration Rules
Copyright
Sarah Branson. March 2005 - All rights
reserved.
No part of this document may
be copied or used without the written permission
of the author.
|
If a client
cannot satisfy the immigration rules, under certain
circumstances, the Home Office has the power to
grant leave to remain outside the immigration
rules. Although it is possible to make an
application outside the rules on any compassionate
grounds, a number of recognized “concessions” have
been established. The importance of understanding
these concessions lies not only in identifying a
possible right to remain for a client, but also
understanding that leave to remain is not likely to
be given if the criteria within these concessions
are not met.
The concessions outlined below are some of the most
commonly used and are likely to be encountered by
family lawyers.
Long Residency Concession
This concession is contained within chapter 18 of
the Immigration Directorate’s instructions. There
are two categories of people who may qualify under
this concession.
-
Those with continual lawful residence
-
Those with continuous residence of any legality
Those with continual lawful residence
When a person has
ten or more
continuous years of lawful residence they should
normally be granted, in the absence of
countervailing factors, leave to remain on the basis
on long residence.
Those with continuous residence of any legality
This applies to those who have remained without
leave to remain for either part or the whole of
their stay in the United Kingdom. Should such a
person be able to demonstrate
fourteen or more
years of continuous residence, they should normally
be granted, in the absence of countervailing
factors, leave to remain on the basis on long
residence.
Countervailing Factors
All concessions are discretionary and leave to
remain would not be granted even if the long
residency conditions have been met if
countervailing factors are present. These include:
-
an extant criminal record, apart from
non-custodial offences
- deliberate and blatant attempts to
evade or circumvent the control by
o
using forged documents
o
absconding
o
contracting a marriage of convenience
etc.
Domestic Violence Concession
This concession is found
in chapter 8 of the Immigration Directorates'
Instructions. The Domestic Violence Concession
applies to spouses who are unable to meet the
criteria for settled status on the basis of marriage
due to the breakdown of that marriage before the
probationary period is over due to domestic
violence. Since 30 May 2003, the probationary
period has been extended from one year to two
years.
At the end of two years,
if the marriage is still subsisting, indefinite
leave to remain will usually be granted. If the
marriage is not subsisting, leave will be refused
unless the criteria in the domestic violence
concession are met. The requirements are that the
Applicant:
(i)
was admitted to the United Kingdom or given an
extension of stay for a period of 2 years as the
spouse of a person present and settled here; or
(ii) was admitted
to the United Kingdom or given an extension of stay
for a period of 2 years as the unmarried partner of
a person present and settled here; and
(iii) the
relationship with their spouse or unmarried partner,
as appropriate, was subsisting at the beginning of
the relevant period of leave or extension of stay
referred to in (i) or (ii) above; and
(iv) is able to produce such evidence as may be
required by the Secretary of State to establish that
the relationship was caused to permanently break
down before the end of that period as a result of
domestic violence.
Continued
