8 November 2021

The Home Office has published guidance on a new concession allowing private life applicants aged 18 to 24 to apply for indefinite leave to remain (ILR) after five years’ continuous leave (“early ILR”).

Why has the Home Office introduced the concession?
Applicants granted leave based on their private life are generally on a 10-year route to settlement. The principle underpinning this longer “probationary period”, as the Home Office describes it, is to encourage “lawful compliance”.

However, in the case of young adults, the Home Office has said that this policy may be less relevant. The guidance states that applicants who are aged 18 to 24 and who were born in the UK or entered as children should not be responsible for previous non-compliance with immigration laws. The wording of the guidance is interesting and could potentially provide scope for arguing that a child or young adult should not be penalised for non-compliance by their parent or guardian in other routes – not just ILR based on private life – where caseworkers can exercise discretion.

Who is eligible?
The eligibility criteria for the concession are as follows, the applicant must:

• be aged 18 to 24;
• have spent at least half of their life living continuously in the UK (discounting any period of imprisonment);
• have been born in or entered the UK as a child;
• have held limited leave for five years; and
• be eligible for further leave to remain under paragraph 276ADE(1) of the Immigration Rules and have made an application under those rules.

Who is not eligible?
Children (aged under 18) are not eligible and are presumed to be living in the UK as dependants of their parents.

In addition, children and young adults are not eligible if their parent, guardian or family member on whom they are dependant is applying under Appendix FM.

Factors relevant to a grant of early ILR
The guidance lists a non-exhaustive list of factors which caseworkers should consider when reviewing an application for a grant of early ILR. These include:

• the applicant’s age when they arrived in the UK;
• the length of the applicant’s residence in the UK;
• the strength of the applicant’s connections and integration in the UK;
• whether unlawful residence in the past was the result of non-compliance by the applicant or their parent/guardian whilst the applicant was a child; and
• whether limited leave to remain will have a detrimental impact on the applicant’s health or welfare.

Where these factors form a “particularly exceptional or compelling reason” to grant early ILR, the caseworker may do so. These factors must be weighed against the public interest factor of lawful compliance underpinning the 10-year route to settlement.

How to apply for early ILR
In general, the onus is on the applicant to request early IRL. If an application is refused, a decision letter setting out the reasons must be provided to the applicant.

Where an applicant has not specifically requested a grant of early IRL, but the applicant is clearly eligible, caseworkers can use their discretion to consider granting it. If discretion is exercised, caseworkers should – but are not obliged – to provide a discretion letter explaining the reasons for the outcome.

Get in touch
To learn more about forthcoming changes to UK immigration law, see our website, contact your assigned LDI lawyer or email enquiries@lauradevine.com.