Since 9 July 2012, the Immigration Rules have contained a new framework for considering applications and claims engaging Article 8 of the ECHR (the right to respect for private and family life). Appendix FM to and paragraph 276ADE(1) of the Immigration Rules provide the basis on which a person can apply for entry clearance to the UK or leave to remain in the UK on family life grounds or leave to remain here on private life grounds.
These Rules, together with the guidance on exceptional circumstances and children’s best interests contained in the Immigration Directorate Instructions, provide a clear basis for considering immigration cases in compliance with ECHR Article 8, as approved by the Supreme Court in February 2017 in MM (Lebanon) & Others v SSHD [2017] UKSC 10 and Agyarko & Ikuga v SSHD [2017] UKSC 11.
In particular, the Immigration Rules reflect the qualified nature of Article 8, setting requirements which properly balance the individual right to respect for private or family life with the public interest in safeguarding the economic well-being of the UK by controlling immigration, in protecting the public from foreign criminals and in protecting the rights and freedoms of others. The Rules also take into account the need to safeguard and promote the welfare of children.
The new guidance on family and private life application reflects a two-stage approach in considering leave to remain applications under the family and private life Immigration Rules in Appendix FM and paragraphs 276ADE(1)-DH of Part 7.
First, the decision maker must consider whether the applicant meets the requirements of the family Immigration Rules without consideration of exceptional circumstances under paragraph GEN.3.2. of Appendix FM, and the private life Immigration Rules under paragraphs 276ADE(1)-DH of Part 7, and if they do, leave under the relevant Rules should be granted.
Second, if an applicant does not otherwise meet the relevant requirements of the Immigration Rules, the decision maker must move on to consider, under paragraph GEN.3.2. of Appendix FM or outside the Rules in the case of an application for leave to remain made solely on the basis of private life in the UK, whether, in the light of all the information and evidence provided by the applicant, there are exceptional circumstances which would render refusal a breach of ECHR Article 8 because it would result in unjustifiably harsh consequences for the applicant, their partner, a relevant child or another family member whose Article 8 rights it is evident from the information provided by the applicant would be affected. If there are such exceptional circumstances, leave to remain should be granted on a 10-year route to settlement (as a partner or parent under Appendix FM or outside the Rules on the basis of private life). If not, the application should be refused.
