If a child or young person has lived in the UK for a long time, they may be able to make an application to the Home Office based on long residence. They can rely on their right to respect for private and family life under Article 8 of the European Convention on Human Rights. These applications are about showing that the child or young person belongs here, that this is their home.
Long residence and private life
Under paragraph 276ADE of the Immigration Rules, a person can apply for leave on the basis of private life using Form FLR(FP). The application fee is currently £1,033, plus a £500 immigration health charge. It is possible to argue for a fee waiver but the applicant has to show that they are destitute. Looked-after children are exempt from the fee.
The Home Office uses specific thresholds to consider applications:
- An applicant aged under 18 must have lived in the UK for at least seven years (discounting any period of imprisonment) and must show it is not reasonable to expect them to leave the UK.
- An applicant aged 18 to 24 must have spent at least half their life living continuously in the UK (discounting any period of imprisonment).
- An adult aged 25 or over must have lived continuously in the UK for at least 20 years (discounting any period of imprisonment).
If someone doesn't meet these thresholds, they can still apply because Article 8 of the European Convention on Human Rights – the right to respect for private and family life – may require a grant of leave.
If they succeed and meet the thresholds, they will be granted limited leave to remain for 30 months. If they succeed but do not meet the thresholds, they will be granted leave outside the rules for 30 months. There is little difference between these types of leave. Both will be granted with a condition of no recourse to public funds, which means no access to benefits, social housing or homelessness help. You can argue why you should not have this condition or why it should be removed; for more information about this, see Coram Children's Legal Centre's fact sheet.
If a child or young person is granted 30 months’ leave, it is very important that they and/or their family start planning early and saving up for their next application. Before the 30 months ends, they will need to apply for further leave, again paying the fee and immigration health charge. It is only after holding limited leave continuously for ten years (that is four applications) that they can apply for indefinite leave to remain. The application fee for indefinite leave to remain is currently £2,389.
Important: The application fee normally changes every year, usually in April. In the past few years the fee has always increased. The NHS surcharge can also change without much warning. You should always check what the current fee is before you apply.
It is possible to argue for a fee waiver when applying for further limited leave. However, the Home Office may decide that the person does not meet the requirements for a fee waiver. In that case, they will have only ten days to pay the fee in full or their application will be rejected. If the application is rejected, they will have no immigration status, and lose their right to work and claim any benefits they had previously. They will also have to start the ten-year route to settlement from the beginning again.
There is no fee waiver available for applications for indefinite leave to remain, although children in Local Authority care are exempt from paying this fee. Find out more about fee waivers from Coram Children’s Legal Centre’s factsheet.
Getting a longer period of leave or ILR straight away
It might be possible to argue that rather than being put on a ten-year route to settlement, a child should be granted indefinite leave to remain immediately. Home Office guidance says where there are compelling or compassionate reasons that justify a longer period of leave or ILR in the best interests of a child this can be granted. They’d need to show evidence of this with the application. It might be relevant for example if the child has medical issues or vulnerabilities and their representative can argue that they need the security of permanent status.
For a looked after child, there is a specific Home Office policy that says a child can be granted four years’ leave to remain followed by ILR. This may apply if there is no possibility that the child will return to their country of origin. The Home Office should consider the views of the local authority.
In other cases, it may be possible for some children in families to make applications based on family life. Relying on Appendix FM of the Immigration Rules, certain adults can apply for leave to remain based on family life as partners or parents on a ten-year route to settlement. Children may be included in these applications as dependants.
A single parent can apply for leave to remain under the Immigration Rules if they are responsible for or have access to their child, and their child is British or has lived in the UK continuously for the preceding seven years, and they can show it would be unreasonable to expect the child to leave the UK.
A partner can apply for leave to remain under the Immigration Rules if their partner is British or settled (that is has indefinite leave to remain). Or their partner has refugee status or humanitarian protection and there are insurmountable obstacles to family life with their partner continuing outside the UK.
The current application fee is £1,033, plus a £500 immigration health charge. As with private life applications, if successful they’ll be granted 30 months’ leave with no recourse to public funds. They will then be on a ten-year route before they can apply for indefinite leave to remain.
Finding a lawyer
No legal aid is available for long residence applications. However, some children and young people may be able to apply to the Legal Aid Agency for exceptional case funding if they or their family are unable to afford a lawyer. A person can get this if they can show that although their case is in an area of law not generally covered by legal aid, they particularly need it. For example, the case is very complex and they cannot apply themselves, or because they are a child, because of their level of literacy, or because they have special needs. To find out how to apply for exceptional case funding there is more information on the central government website. You can also get useful information from the Public Law Project's website.
Those who cannot get legal aid must pay privately for a lawyer. If a child, young person or family has no leave in the UK and is making their first application, it is vital to get a lawyer to help with the application. To find a lawyer, see the Immigration Law Practitioners’ Association website.
Immigration status while waiting for a decision on a renewal application
If an application is made on time, that is before the expiry of existing leave, then leave is treated as continuing while the application is considered. This can take months or even years. It means that the person’s immigration status stays the same and they have the same entitlements. That’s why it’s vital that people apply while their current leave is still valid.
One difficulty can be that they no longer have their biometric residence permit as proof of their status. This might make it difficult to for example access health care, enrol at college, rent a property or open a bank account. In this situation, they can:
- show a copy of their old biometric residence permit and explain that their leave is treated as continuing under section 3C of the Immigration Act 1971
- get a letter from their lawyer
- contact their MP, who can write to the Home Office about their case and the Home Office’s reply may confirm that their case is being considered
A Case Study: Temi’s story
I came to the UK with my mum and little brother in 2005 at the age of 11. I was told we were coming to London on holiday but as time went by I understood and accepted that we were here to stay.
Growing up in the UK, I settled into school easily. I made friends and became a part of the crowd. However, I was aware that something was not right. When the opportunity for school trips came along I never spoke to my mum about it or showed her any letters relating to the issue. My mum always made sure to remind me not to tell my problems to anyone. As a result, I learned to bottle my emotions and became pretty good at it.
Although not having status was something that constantly lingered at the back of my mind I don’t think I registered that if my status remained unresolved, I wouldn’t have the same opportunities as my friends. I was not able to apply to work and I had no form of ID. Now, looking back I realise I was trying my very best to remain positive. The most painful thing at that time was not knowing if I would be able to share the experiences of my British-born peers.
My mum made attempts to resolve my status but we were given bad advice by many lawyers. After several years, my family finally found a suitable lawyer who talked us through the process and gave us accurate advice. During this time, I joined a group called Let Us Learn and I talked to other young people with similar experiences. This helped me realise I was not alone.
I can now say that I have limited leave to remain after being in limbo for such a long time. I am about to start a new job and recently travelled out of the country for the first time. I feel a sense of independence. Although I feel liberated, as a migrant there are always hurdles to overcome. I hope to stay on this route to settled status and eventually apply for British citizenship to be recognised as a national of the country I love.