Legal Ease Outlook.
Shopping Cart
Your Cart is Empty
Quantity:
Subtotal
Taxes
Shipping
Total
There was an error with PayPalClick here to try again
Thank you for your business!You should be receiving an order confirmation from Paypal shortly.Exit Shopping Cart
Expert Legal Advice, Support & Advocacy.
Emergency Hotline: +44(0)79 4163 0343
Email: [email protected]
Blog
Blog
TERMINOLOGIES EXPLAINED
| Posted on 4 April, 2014 at 19:35 |
Discretionary Leave to Remain Under Article 8 ECHR
A person can apply for Discretionary Leave to Remain on the basis of Article 8 of the European Convention on Human Rights (ECHR) arguing that his/her removal from the UK will result in breach of the UK's obligation under Article 8 of the ECHR and that interference of the UK Authorities in a person's private and family life will be an unreasonable and disproportionate interference. The Discretionary Leave to Remain is a leave granted by the Secretary of State outside the Immigration Rules and any exceptional and compassionate circumstances in the case are always a relevant consideration when it is decided whether or not discretion should be exercised to grant Discretionary Leave to Remain.
Discretionary Leave Following Refusal of An Asylum Claim
If you have claimed asylum in the UK and the Home Office do not recognise you as a refugee or a person who qualifies for humanitarian protection, the Home Office UKBA may give you another type of temporary permission to stay in the UK. This permission is called 'discretionary leave to remain'. How long you are allowed to stay will depend on your circumstances, but it is unlikely to be more than three years initially.
The Home Office will only give you discretionary leave to remain in limited circumstances. If you apply to renew it when it expires, the Home Office will review your circumstances before deciding whether to give you further permission to stay. To extend your residence permit or apply for permanent residence, you will need to complete application form DL.
Application Form To Apply For Discretionary Leave.
To make an initial application for discretionary leave, an application Form FLR (O) should be used. If you were previously granted discretionary leave as a result of FLR (O) application, you can then apply for extension of your discretionary leave by using the same form i.e. FLR (O) application Form. An application for Indefinite Leave to Remain (ILR) in such case will be made using the Application Form SET (O).
If you were granted discretionary leave as a result of refusal of your asylum claim, you can apply for extension of your discretionary leave by using Application Form DL. An application for ILR will also be made using form DL in such case.
When Can A Person With Discretionary Leave Apply For Indefinite Leave To Remain (ILR)?
You will not be able to apply for Indefinite Leave to Remain (ILR) until you have lived in the UK for at least six years under the Discretionary Leave to Remain. Application for Indefinite Leave to Remain is made using Application Form DL if you were granted discretionary leave to remain following refusal of your asylum claim and in any other case the Application Form SET (O) will be used to apply for Indefinite Leave to Remain (ILR).
Will You Get Right To Appeal If Your Discretionary Leave Application Is Refused By The Home Office?
If your FLR (O) application for initial discretionary leave to remain is refused by the Home Office, you may or may not get a right to appeal to the First Tier Tribunal of the Immigration and Asylum Chambers.
You may get right of appeal against the refusal of your FLR (O) application for discretionary leave only if an enforcement decision is made by the Home Office giving directions for your removal from the UK on the grounds that your removal from the UK will be breach of the UK's obligations under the European Convention On Human Rights (ECHR) unless the Home Office certified your human rights claim as manifestly unfounded.
You will get right to appeal against the refusal of your application for extension of your discretionary leave as long as you made the application for extension of your discretionary leave before the expiry of your leave.
Indefinite Leave to Remain (ILR)
The correct terminology for full or permanent residency is indefinite leave to remain (ILR). You can apply for ILR in several ways depending upon your UK immigration status.
ILR allows you to remain in the UK for an indefinite period, on condition you intend to remain present and settled here. If you leave the country for a continuous period of 2 years or more, it is usually deemed by the authorities that you are no longer present and settled, and you may have your ILR revoked.
ILR allows you to work without restriction in the UK. It allows you to exit and re-enter the country multiple times. You are free of immigration control.
An application for Indefinite Leave to Remain (ILR) can be submitted to the Home Office, UKBA on the basis of 5 years residence in the UK as a recognised refugee under the 1951 United Nations Convention Relating to the Status of Refugees. An application using Form SET (Protection) should be used to submit the application to the Home Office, UKBA within 30 days from the date of expiry of your leave to remain in the UK as a refugee.
If you do not apply in time, your permission to stay as a refugee will end and the Home Office, UKBA will carry out an in-depth review of your case. Your status may be revoked, causing you to be removed from the UK. There is no Home Office fee for the SET (Protection) application form.
You may wish to consider applying under any of the following circumstances:
- Shortly prior to the expiry of a 2 year marriage visa
- Shortly prior to the expiry of a 5 year ancestry visa
- Once having held work permit status in the UK for 5 years
- Once having legally spent 10 years in the UK
- Once having spent 14 years in the UK
- Once having spent continuous 5 years in UK as an investor
- Once having spent continuous 5 years in UK as a writer, composer, or artist
- Once having spent continuous 5 years in UK as a retired person of independent means
Most applicants for ILR will be required to have passed the Life in the UK Test.
Marriage to a British Citizen
You may apply for this visa if you are married to a British citizen, or person who has settlement status in the UK (i.e. a person who holds indefinite leave to remain (ILR) or right of abode. The visa, which is initially issued for a 2-year probationary period, allows you to work without restriction and to exit and re-enter the UK multiple times. At the end of the probationary period, you must submit evidence to the Home Office that you have been living together for that time, after which you may be eligible to apply for ILR yourself.
In order to apply for this visa you and your spouse must:
- Have met
- Be lawfully married to one another
- Intend to live together permanently as man and wife
- Be able to support yourselves and your dependant children, if you have an.
This visa may also be applied for if you are married to a national of a country in the European Economic Area (EEA) other than the UK (please note that the probationary visa is issued for 5, rather than 2 years).
You may also apply for a marriage visa under any of the following circumstances:
- You are married to someone who holds and ancestry visa
- You are married to someone who holds a student visa
- You are married to someone who holds a work permit
- You are married to someone who holds a Tier 1 visa
However, in all of these cases, you must apply for the visa outside the UK, typically in your partner’s home country.
Unmarried Partner.
You may apply for this visa if you are in a long-term relationship with a British citizen or a person who has settlement status in the UK. You and your partner must be able to provide evidence that you have been living together in a relationship akin to a marriage for 2 years or more. The relationship may be a heterosexual or a same-sex relationship.
The visa allows you to work freely in the UK. In order to apply for it you must:
- Be able to support yourselves, and your dependants if you have any, without recourse to public funds
- Intend to live with your partner permanently.
As for the marriage visa, this visa is initially issued for a 2 year probation period (5 years if your partner is a citizen of an EEA country other than the UK), at the end of which, provided you are able to submit evidence that your relationship is genuine and that it will continue, you may apply for ILR.
Judicial Reviews (JRs) In The Upper Tribunal
The Upper Tribunal, Immigration and Asylum Chamber decides applications for judicial review of certain decisions made by the Secretary of State for the Home Department, entry clearance officers and others, under immigration legislation. The classes of case where an application to challenge such a decision may be made to the UTIAC are those to which paragraph 1 of the Lord Chief Justice’s direction of 21 August 2013 applies.
The UTIAC also has jurisdiction to deal with judicial reviews of other decisions, where the application has been made to the High Court, but which that Court decides to designate as an immigration matter and transfer to the UTIAC under section 31A(3) of the Senior Courts Act 1981. It is also possible for a Court to transfer a judicial review application to UTIAC, where the challenge is to the assessment of the age of a person who claims to be a minor from outside the United Kingdom.
Where the Home Office, UKBA have refused an application for entry clearance or leave to remain and have not granted right of appeal against the refusal of the application, such refusal can be challenged by way of Judicial Review (JR) within 90 days from the date of the refusal letter.#
The Civil Procedure Rules require that Pre-Action Protocol notice must be sent to the Home Office, UKBA giving them at least 14 days to review their decision and change their decision in light of the information/documentary evidence given through Pre Action Protocol letter. As a result of Pre Action Protocol letter, the Home Office, UKBA may review their decision to refuse the application and may either maintain the refusal or grant the visa.
If the decision to refuse is maintained by the Home Office, UKBA or the Home Office, UKBA do not respond to the Pre Action Protocol letter within 14 days, you can make an application to the Upper Tribunal for permission to apply for Judicial Review. Such application is made on papers and the court will refuse and grant permission on papers and without a court hearing. The majority of the applications for permission to apply for Judicial Review (JR) are resolved by consent at this stage after negotiations between the Treasury Solicitors (the solicitors representing the Home Office, UKBA) and the claimant's solicitors.
If paper application for permission to apply for Judicial Review (JR) is refused by the Upper Tribunal, the claimant can then make an application for renewal of permission for Judicial Review (JR) within 7 days for the permission application to be decided after a court hearing. The court will list the matter for hearing and the permission will be granted or refused after the court hearing.
If the permission is granted either at the stage of application on papers or after the hearing in the court, the Judicial Review (JR) will then be listed for substantive hearing whereby the Upper Tribunal will decide whether or not the decision of the Home Office, UKBA is in accordance with the relevant laws.
If permission to apply for Judicial Review (JR) is refused by the Upper Tribunal following oral hearing, an application can then be made to the Court of Appeal for permission to appeal to the Court of Appeal within 7 days of the order of the Upper Tribunal refusing permission to apply for Judicial Review.
Categories: None
/