A Guide For UK Overstayers – How To Become Legal banner


A Guide For UK Overstayers – How To Become Legal

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In January 2018, over 70,000 bank accounts will be checked and could be closed or frozen, in the British government’s latest attempt to crack down on illegal migrants.

The new policy to freeze migrant bank accounts is part of the Immigration Act 2016, a piece of legislation dedicated in part to creating an extremely hostile environment for overstayers in the UK.

The best Immigration solicitors are deeply concerned about this incoming policy as it is likely that migrants who have a legal right to be in the country could be adversely affected if mistakes by Immigration officials are made.

If you are a visa overstayer or failed Asylum seeker, the bank account checks may seriously affect you. Although there are supposed ‘safeguards’ being put in place to ensure families are not left in a position where they cannot pay rent or buy food, it is difficult to see how such draconian steps cannot create poverty and fear.

The three main ways to become a legal migrant in Britain is by making a claim for discretionary leave to remain, making a claim under Article 8 principles or via the 20-years’ residence route.

Discretionary leave to remain

Under discretionary leave to remain, the Home Office may grant a person permission to stay in the UK for a fixed period if their circumstances require them to leave the country under the Immigration Rules. Discretionary leave is granted on compassionate grounds and used very sparingly. It is therefore crucial that you instruct an experienced Immigration lawyer to provide you with the best advice and representation if you are considering an application for discretionary leave to remain.

Reasons why discretionary leave to remain may be granted

Discretionary leave to remain only applies to those who provide evidence of exceptional compassionate circumstances or there are other compelling reasons to grant leave on a discretionary basis.

Examples include:

  • Medical cases – discretionary leave to remain may be granted in cases where an illegal migrants medical condition is so serious that the European Convention on Human Rights (ECHR), Article 3 would be breached if the overstayer was returned to their home country. Article 3 states, “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” The threshold is exceptionally high; examples given by the Home Office include an applicant being in the final stages of a terminal illness without the prospect of medical care or family support on return to their home country.
  • Breaches of the ECHR (other than Article 8) – this may cover cases where ‘return would result in a flagrant denial of a human right’ in the applicant’s country of origin. Such cases would likely involve a breach of Article 3 which is not covered by a grant of humanitarian protection.
  • Exceptional circumstances – Discretionary leave to remain may be considered appropriate after the Immigration official examining the case has considered paragraph 353B of the Immigration Rules. Paragraph 353B states “When a Human Rights or Asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered.” An example given in the Home Office guidance is “an Asylum seeker who has spent a significant period of time in the UK for reasons beyond their control, though such individuals are expected to provide evidence as to why they cannot leave voluntarily.”
  • Modern slavery cases (including trafficking) - A person will not normally qualify for discretionary leave solely because they have been identified as a victim of modern slavery or trafficking – there must be compelling reasons based on their individual circumstances to justify a grant of discretionary leave where they do not qualify for other leave such as Asylum or humanitarian protection.
  • Failed Asylum cases – it would be rare for discretionary leave to be granted under these circumstances, but there is scope for it where individual circumstances are so compelling, that it is considered appropriate to grant leave to remain.

Article 8 claims

You may be able to claim leave to remain in the UK under Article 8 of the ECHR. Unlike Article 3 which is an absolute right, the State has the discretion to balance an application under Article 8 with its right to control Immigration. Article 8 arguments are therefore always about weighing up these opposing rights – if you can prove that the breach of your Article 8 rights would be so serious that it outweighs the British government’s right to remove/deport you (a "disproportionate breach"), you may be granted leave to remain.

Article 8 states:

Article 8 – Right to respect for private and family life

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

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being 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.

When balancing proportionality, the Home Office and court’s start off by applying the "Razgar Test". The test originated from the case R (Razgar) v SSHD [ [2004] UKHL 27, [2004] 3 All ER 821, in which the late Lord Bingham proposed a structured approach to Article 8 decision-making, identifying five questions which would have to be answered successively, assuming every question was reached:

“‘17. In considering whether a challenge to the Secretary of State's decision to remove a person must clearly fail, the reviewing court must, as it seems to me, consider how an appeal would be likely to fare before an adjudicator, as the tribunal responsible for deciding the appeal if there were an appeal. This means that the reviewing court must ask itself essentially the questions which would have to be answered by an adjudicator. In a case where removal is resisted in reliance on article 8, these questions are likely to be:

  • will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect for his private or (as the case may be) family life?
  • if so, will such interference have consequences of such gravity as potentially to engage the operation of article 8?
  • if so, is such interference in accordance with the law?
  • if so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being 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?
  • if so, is such interference proportionate to the legitimate public end sought to be achieved?”

Unfortunately, having a British partner or child is not enough to be granted leave to remain in the UK. The Home Office does have to show that they have considered the "best interests" of the British child, but having a British child is not enough in itself to obtain leave to remain. Sometimes the Home Office will argue that removing the applicant is proportionate because they can keep in touch with family members by Skype etc.

Article 8 claims are exceptionally complex and require expert legal advice and representation. If you think you have an Article 8 claim, you can obtain the best guidance from an experienced Immigration solicitor.

20 years’ residency Immigration rule

The 20-years’ rule on long residence is contained at paragraph 277ADE(1)(iii) of the Immigration Rules. Under the 20-year rule, a person does not have to have lived in the UK lawfully, but simply “continuously”. This means, time spent in prison will not break the continuous residence requirement.

The 20-years’ residency rule will generally only be refused if the application has not been submitted correctly or on suitability grounds (i.e. it would not be in the public good to grant leave to remain).

If the application is successful, limited leave to remain for 30 months may be granted, which can be renewed. After a further ten years, the applicant may be able to apply for Indefinite Leave to Remain.

In summary

The incoming bank account checks which provide the power to freeze illegal migrants bank accounts are cause for serious concern. If you are a visa overstayer, failed Asylum seeker or foreign national offender who is in the UK illegally, it is imperative that you seek the best advice from an experienced Immigration solicitor immediately.

OTS Solicitors is one of the most respected Immigration law firms in London. By making an appointment with one of our Immigration solicitors, you can be assured of receiving some of the best legal advice available in the UK today. We can assist you in legalising your residency in the UK through a discretionary leave to remain, Article 8 or 20-year residency route application.

If you wish to discuss any of the points raised in this blog, please phone our London office on `0203 959 9123.

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