What is the legal position of the 10 year illegal immigrant? Are any official routes available to you under UK immigration law to regularise your immigration status?
If you are a non-EU national living in the UK without valid leave to enter or remain, you will be classed as an illegal immigrant.
You may have entered the UK lawfully, either for a short visit for work, study or to visit family, and subsequently overstayed once your permission to be in the UK had expired. Or perhaps you have breached the terms of your visa and as a result your leave was curtailed. Or you may have entered the UK seeking asylum but had your claim or appeal rejected.
Whatever the reason, if you are currently in the UK unlawfully, you are at risk of deportation.
While an illegal immigration amnesty remains the subject of general debate, it seems a far-off prospect under the current Government and its mandate to significantly reduce net immigration.
As the law stands, a 10 year illegal immigrant will remain illegal unless they can ascertain a way to lawfully regularise their status in the UK. The legal right to enter and remain in the UK can only be obtained through a formal application to the Home Office and will depend on your individual circumstances.
Regularising your immigration status as a 10 year illegal immigrant
If you have been living in the UK unlawfully, you may be able to regularise your status by applying to the Secretary of State to grant a period of discretionary leave outside the Immigration Rules.
One of the more common applications for discretionary leave is where you can show strong connections and family in the UK and where deporting you would impact your human rights. In these circumstances, you may be able to apply to regularise your immigration status under Article 8 of the European Convention on Human Rights (ECHR).
Article 8 of the ECHR incorporates the right to respect for family and private life and can provide a range of different routes to obtaining leave to remain. You can make a formal Article 8 application to the UK Home Office. Each application will be considered on a case-by-case basis, taking into account your individual circumstances.
It will be important that any case you put forward for discretionary leave is accurate and comprehensive, evidencing for example an established family life, lengthy UK residence and a clean criminal record.
If discretionary leave is granted, you gain the right to live and work in the UK.
The basis for an Article 8 application as a 10 year illegal immigrant
Applying for leave to remain in the UK on the basis of family or private life is often referred to as the ‘partner, parent or private life route’ (Appendix FM Section 1). In this way you may become eligible to apply for settlement 10 years after you are first granted leave.
The partner route is potentially available to those in the UK as the partner of someone who is British or settled in the UK, or is in the UK with limited leave as a refugee or granted humanitarian protection. A partner includes a spouse, civil partner, fiancé(e) or proposed civil partner, or who has been living together with the applicant in a relationship akin to a marriage or civil partnership for at least 2 years prior to the date of application.
The parent route provides a basis on which leave to remain can be granted to a parent who has sole responsibility for, or direct access to, a child living in the UK. Here the child must be either a British citizen, or has lived in the UK continuously for 7 years immediately preceding the date of application and it would not be reasonable to expect the child to leave. Where children are involved, there will be consideration of the child’s best interests, which should not generally be affected by the conduct or immigration history of the parent(s).
The private life route may also be available to you if you have lived in the UK for a significant length of time, in particular:
- you have lived continuously in the UK for at least 20 years.
- you are under the age of 18 years and have lived continuously in the UK for at least 7 years, and it would not be reasonable to expect you to leave the UK.
- you are aged between 18-25 years and have spent at least half of your life living continuously in the UK.
- you are aged 18 years or above, have lived continuously in the UK for less than 20 years, but there would be very significant obstacles to your integration into the country to which you would have to go if required to leave the UK.
Different suitability and eligibility criteria apply to each route, with stringent requirements weighing against a successful application where an applicant has been living in the UK unlawfully for prolonged periods of time. However, if there is evidence of exceptional circumstances that would render refusal a breach of Article 8 because it would result in unjustifiably harsh consequences for the applicant or their family, then leave to remain may still be granted.
The Home Office will take into account the circumstances around the applicant’s entry to and stay in the UK, as well as the proportion of the time they have been in the UK legally as opposed to illegally.
If your application is successful, you will be granted limited leave for 30 months. You can apply to extend this period of leave when it is due to expire. After spending a total of 10 years on limited leave, you can then apply for indefinite leave to remain.
Leaving the UK as a 10 year illegal immigrant
If you are living illegally in the UK as a 10 year illegal immigrant you may be detained by the Home Office and subsequently deported. If you elect to return to your home country voluntarily, you may be able to get help to arrange and pay for your journey. This is known as an assisted voluntary return.
If you choose to leave voluntarily, you can apply to return to the UK between 1 to 5 years depending on your circumstances. If you are deported, you will be banned from returning to the UK for 10 years. If you are facing deportation, you should seek legal advice immediately.
Take advice on your options
The legal position for 10 year illegal immigrants is extremely complex, both under the Immigration Rules and where the Secretary of State’s discretion is being sought.
If you want to regularise your immigration status in the UK, particularly as a 10 year illegal immigrant, take specialist legal advice to explore all options available to you.