Is there really a secret UK Government Immigration Amnesty in operation for the undocumented? If not,what are my options?

“I am sorry, there is no published immigration amnesty so far as I am aware”, says the immigration lawyer, for the third time, during the 12minute call.

“But my friend, he says there is a secret amnesty by the government, the government does not want all people to know about it, my friend applied months ago under the amnesty and he now has a visa, he is not the only one, he is already working ”,  repeats the Caller.

He quickly adds, “I will send you the whatsapp message my friend received from his whatsapp group, he says I can use the form to apply under the amnesty, will you apply for me? Lots of people are applying, they are having biometrics done using this form, its’ working for them, why cant we use it? you are my lawyer aren’t you? I will call you back in 2minutes once you have read the message, so that we can apply”.

The Whatsapp message is received within a matter of seconds, with the following information:

“Home Office. Asylum Amnesty Application Windrush Damage Control

PLEASE CHECK THIS OUT FOR YOURSELF IF YOU NEED IT OR PASS IT ON TO HELP OUR COMMUNITY:

Please pass on to someone in UK knows someone who knows a person with no papers UK Visa Indefinite Leave to Remain.

The UK Home Office is issuing Visa in silence as a brief amnesty to those who have been living in UK with no papers for the past 10years.

They need to get GET(P) form Version 07/2018 that needs to be completed.

IGNORE what it says on the form that Application for Asylum or Humanitarian Protection and for a biometric immigration document.

Ignore all that.

Include a copy of child’s UK birth certificate, marriage certificate if you have+ required photos including  the child.

Ignore BRP section 1.10. Ignore Home Office section 3.6.

FOCUS on Section 5.18, mention yourself the Parent accompanying a child under 18 for Biometric.

Due to The Windrush crisis and Brexit, it is a silent action from the Home Office.

For those with no Children, you still need to complete same form and ignore the child details but complete Section 3 if you have family already in UK.

PLEASE CHECK DETAILS FIRST with A GOOD IMMIGRATION LAWYER………..

If you know anyone with NO PAPERS- the Home Office is giving people legality to stay quietly due to the Windrush scandal.

The 10year Rule is back.

Pass on as Required”.

I have seen this sort of message twice this year, with the same references to “GET(P) form”, a form which does not appear to exist, perhaps a typing error by the author intended to refer to SET (Protection Route) (SET-P)- applications for settlement on Form SET(P) are now made online and the Guidance relevant to this type of application is: Asylum policy instruction: settlement protection

For some time now queries have been raised, in particular from the undocumented, about  the secret existence of an amnesty being applied by the UK government or questions about when the government will bring in an amnesty.  This is hardly surprising, following on from Boris Johnson’s previously expressed suggestions seemingly advocating for one, resulting in a stinging response from Migration Watch UK: An amnesty for illegal immigrants? https://www.migrationwatchuk.org/press-release/584/an-amnesty-for-illegal-immigrants. The Spectator, on the other hand,  has written an interesting article  contending that an amnesty is the direction to take: “The case for amnesty: why it’s time to offer citizenship to illegal immigrants”, https://www.spectator.co.uk/2019/11/the-case-for-amnesty-why-its-time-to-offer-citizenship-to-illegal-immigrants/

For well over a year now,  “applicants” have been submitting  SET(P) form, without ever having been granted refugee status or humanitarian protection, some  convinced  that they can use this form and some doing so out of  sheer desperation, believing no other avenue exists to resolve their immigration status.

What seems a deceptively attractive lure in using Form SET(P) is that the form requires no  application fees. That is why the vulnerable and the desperate are so readily to use it.

The Home Office have been rejecting such applications on the basis that  Form SET(P) does not apply, being only for use by those who have previously been granted 5 years limited  leave to remain on  Refugee or Humanitarian Protection grounds. The response is expected in particular where such applicants have never been granted leave in either  of the mentioned categories.

Home Office operational Guidance, Policies and Instructions are published on this website: https://www.gov.uk/topic/immigration-operational-guidance

The Guidance is vast, however there is no Guidance on the application of an amnesty.

This may also be apparent from recent reports that the previous proposal floated by the Prime Minister to introduce an amnesty for the undocumented  has been quietly scrapped by the government:  

“However, when asked about the plans by Labour MP Dr Rosena Allin-Khan​ in a parliamentary question this month, Home Office minister Victoria Atkins appeared to shoot them down, saying the immigration rules “already provide for undocumented migrants to regularise their status”. Download the new Independent Premium appSharing the full story, not just the headlinesDownload now  Ms Atkins said: “The government remains committed to an immigration policy which welcomes and celebrates people to the UK through safe and legal routes but deters illegal immigration”.

https://www.independent.co.uk/news/uk/politics/boris-johnson-migrants-undocumented-amnesty-home-office-a9301376.html

The Whatsapp message has had wide and continuing exposure. For the desperate undocumented, this is the answer to their problems.

Hopes have been raised and continue, even despite the Government’s current position.

The problem however is that those erroneously believing there is a secret amnesty and that they have an effective pending application by virtue of submission of SET(P),  leave themselves vulnerable to  removal  action when they find themselves once again, months later in the same position but with a rejected  unconsidered application.

Current options for the undocumented – the Immigration Rules

Each case is considered by the Home Office by reference to its individual circumstances.

An undocumented applicant having a British citizen child or a child with  7years residence in the UK, might have submitted Form SET(P), with the final decision being a grant of leave to remain. The grant of leave might therefore seem attributable to the submitted application form.  It is important to note however in instances such as these, where the  Home Office is aware of the family circumstances, prior to removal action being taken, a Section 120 Notice, Statement of Additional Grounds, would likely have been sent out at some point requiring the person intended to be removed to provide reasons why they should be permitted to remain in the UK. A response to such a Notice, with up -to- date information and documentation regarding the relevant qualifying child  does not usually require submission of Home Office application fees. Advance submission of  Form SET(P),  in these specific circumstances might overtake a Notice which the Home Office would have sent in any case, with the ultimate decision  being a grant of leave to remain.

The 10year Long Residence Rule,  Paragraph 276B, applies to those who have  been in the UK legally for 10 continuous years.

What the Government expects is for the undocumented, those who are in the UK “illegally” to seek to regularise their immigration status through the existing provisions in the Immigration Rules.

Private life in the UK- Long Residence

The requirements to be met under the 10-year private life route to settlement are set out in paragraph 276ADE(1) and 276ADE(2) of the Immigration Rules.  

To meet the requirements of paragraph 276ADE(1)(iii) to 276ADE(1)(vi), an applicant must meet one of the following requirements at the date of application:

  • 20year Rule- have lived continuously in the UK for at least 20 years (discounting any period of imprisonment) 
  • Children 7year Rule – be under the age of 18 years and have lived continuously in the UK for at least 7 years (discounting any period of imprisonment) and show it would not be reasonable to expect the applicant to leave the UK 
  • Young adult – be aged 18 years or above and under 25 years and have spent at least half of his life living continuously in the UK (discounting any period of imprisonment) 
  • Less than 20years residence- be aged 18 years or above, have lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but there would be very significant obstacles to the applicant’s integration into the country to which he would have to go if required to leave the UK

Where the application has been considered solely on the basis of private life in the UK under paragraph 276ADE(1)-DH, and the applicant does not otherwise meet those rules, but it is considered that 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 or their family),  the Home Office will consider whether to grant leave to remain on Article 8 grounds outside the Immigration Rules.

Family Life Route – Appendix FM

The requirements to be met for leave to remain under the 10-year family life route to settlement are:

Family life as a partner – The eligibility requirements for leave to remain as a partner are set out in paragraphs E-LTRP.1.2. to E-LTRP.4.2. of Appendix FM. Where an applicant in the UK does not fall to be granted on a 5-year route as a parent because certain eligibility – financial, accommodation, English language or immigration status – requirements are not met, they may still fall for a grant of leave on a 10-year route if EX.1. applies.

Family life as a parent – The eligibility requirements for leave to remain as a parent are set out in paragraphs E-LTRPT.2.2. to E-LTRPT.5.2. of Appendix FM. Where an applicant in the UK does not fall to be granted on a 5-year route as a parent because certain eligibility – financial, accommodation, English language or immigration status – requirements are not met, they may still fall for a grant of leave on a 10-year route if EX.1. applies.

For the purpose of leave to remain, the relevant child must:

• be a British citizen or settled in the UK

• have lived in the UK continuously for at least the 7 years immediately preceding the date of application   

Article 8 exceptional circumstances

Where an application or claim is made by a partner, or parent and there are exceptional circumstances that following consideration of GEN.3.2. and GEN.3.3. mean that refusal would result in unjustifiably harsh consequences for the applicant or their family, the Home Office will consider granting leave to remain under  D-LTRP.1.2. on the 10-year partner route or under D-LTRPT.1.2. on the 10-year parent route.

Dependent children should be granted under D-LTRC.1.1. where the parent is being granted under Appendix FM.  

In relation to relevant definitions, current Home Office Guidance, Family life (as a partner or parent), private life and exceptional circumstances, Version 5.0, dated 11 December 2019, provides:

“Exceptional circumstances’ means circumstances which could or would render refusal of entry clearance or limited leave to remain a breach of ECHR Article 8 (the right to respect for private and family life), because refusal could or would result in unjustifiably harsh consequences for the applicant, their partner or a relevant child, or would result in unjustifiably harsh consequences for another family member whose Article 8 rights it is evident from the application would be affected by a refusal. 

‘Exceptional’ does not mean ‘unusual’ or ‘unique’. Whilst all cases are to some extent unique, those unique factors do not generally render them exceptional. For example, a case is not exceptional just because the criteria set out in the Immigration Rules have been missed by a small margin.

Instead, ‘exceptional’ means circumstances in which refusal of the application could or would result in unjustifiably harsh consequences for the individual or their family such that refusal would not be proportionate under Article 8. 

‘Unjustifiably harsh consequences’ are ones which involve a harsh outcome(s) for the applicant or their family which is not justified by the public interest, including in maintaining effective immigration controls, preventing burdens on the taxpayer, promoting integration and protecting the public and the rights and freedoms of others. 

This involves consideration of whether refusal would be proportionate, taking into account all the facts of the case and, as a primary consideration, the best interests of any relevant child. The case-law makes clear that where the applicant does not meet the requirements of the rules, and has established their family life in ‘precarious’ circumstances (for example, when they have limited leave to enter or remain in the UK), something ‘very compelling’ is required to outweigh the public interest in refusal. Likewise, where family life is formed or exists with a person outside the UK who has no right to enter the UK and does not meet the requirements of the rules for entry clearance, Article 8 does not require that they be granted entry, in the absence of such exceptional circumstances”.

Compelling compassionate factors

Where circumstances do not warrant a grant of leave on the basis of Article 8, Home Office decision makers are required to consider if a grant of leave is warranted on compelling compassionate grounds.  

Compelling compassionate factor, according to Home Office Policy Guidance are, “exceptional circumstances that warrant a period of leave for a non-Article 8 reason. An example might be where an applicant or family member has suffered a bereavement and requests a period of stay to deal with their loss or to make funeral arrangements”. 

In considering compassionate factors, the Home Office will consider all relevant factors raised by the applicant.

Conclusion

There currently being no amnesty in existence, those seeking to regularise their stay in the UK,  should have close regard to the requirements of the Immigration Rules and also consider seeking representation from regulated advisors in this regards.

Reliance on random Whatsapp messages as a source of advice, is highly unrecommended.  

-Source: UK Immigration Justice Watch

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s