New Guidelines on Family ILR Exercise Published
The Immigration & Nationality Department has published new guidance for the Family ILR policy, also known as the 'family amnesty', which has been in place since October 2003.
This is a one-off exercise by the Home Office to allow some asylum seeking families to remain in the UK, but has become widely known as the 'families' amnesty'.
There was much confusion about the amnesty when it was first revealed by the Home Office, as specific guidelines were not originally published.
The newest guidance is similar to the previous guidance with some changes. However the main requirements of the amnesty are that the applicant must have applied for asylum before 2 October 2000; and the applicant had at least one dependent child aged under 18 in the UK on 2 October 2000 or 24 October 2003.
Please see below for the full text of the new guidance.
'ONE-OFF EXERCISE TO ALLOW QUALIFYING ASYLUM SEEKING FAMILIES
TO STAY IN THE UK'
Introduction
This note sets out the criteria for granting indefinite leave to enter or remain (ILR)outside the Immigration Rules as a result of the concession announced by the Home Secretary on 24 October 2003 to allow certain families seeking asylum in the UK to stay (the "concession" henceforth). It updates and replaces the note One-off
exercise to allow families who have been in the UK for three years or more to stay with effect from 12 June 2006. All applications considered after that date will be considered in accordance with this note. New applications from persons who have previously applied unsuccessfully under the previous notice will be considered under
this revised policy.
Basic criteria of the concession
The basic criteria for deciding whether or not a family will qualify for the exercise are:
The applicant applied for asylum before 2 October 2000; and
The applicant had at least one dependant aged under 18 (other than a spouse or civil partner) in the UK on 2 October 2000 or 24 October 2003.
Application for asylum
The initial claim for asylum must have been made before 2 October 2000.
Families will be eligible for the concession where the asylum claim (i) has not yet been decided, (ii) has been refused and is subject to an appeal, (iii) has been refused and there is no further avenue of appeal but the applicant has not been removed (iv)has been refused but limited leave has been granted or (v) has been decided in their
favour and limited leave as a refugee has been granted.
Families will not be eligible if after refusal of the initial claim the applicant has been removed or has made a voluntary departure.
Dependants for the purpose of qualifying for the concession
For the purpose of determining whether the basic criteria of the concession are met, a dependant is a child of the applicant, or child of the applicant's spouse or civil partner, who was financially and emotionally dependent on the applicant on the relevant date (i.e. 2 October 2000 or 24 October 2003).
Caseworkers should also be satisfied that the dependant:
is related as claimed to the principal asylum applicant; and
formed part of the family unit in the UK on 2 October 2000 or 24 October 2003.
Caseworkers must be satisfied that the dependant was living in the UK on 2 October 2000 or 24 October 2003 as part of the family unit. Normally evidence of the dependant on the asylum file prior to the date of the announcement will be sufficient. If the dependant was born in the UK and is not listed on the asylum file, a UK birth
certificate will be key evidence.
Where a dependant is not listed on the file and was not born in the UK, strongevidence will be required to satisfy a caseworker that a dependency relationship does exist and that the dependant was living in the UK on 2 October 2000 and/or 24 October 2003 as part of the family unit.
Granting leave in line to dependants
All dependants of the applicant who meet the basic criteria for the concession should be granted ILR.
For this purpose a dependant is the spouse, civil partner or child of the main applicant, or child of the spouse or civil partner, who formed part of the family unit in the UK on 24 October 2003.
Caseworkers should be satisfied that the dependants:
are related as claimed to the principal applicant; and
formed part of the family unit in the UK on 24 October 2003.
Caseworkers must be satisfied that the dependant was living in the UK on 24 October 2003. Normally evidence on the asylum file of the dependant prior to the date of the announcement will be sufficient. If the dependant was born in the UK and is not listed on the asylum file, a UK birth certificate will be key evidence. If the dependant claims to be married to the applicant but is not listed on the file, a UK marriage certificate will be key evidence.
Where a dependant is not listed on the file and was not born in the UK strong evidence will be required to satisfy a caseworker that a dependency relationship does exist and the dependant was living in the UK as part of the family unit on 24 October 2003.
Leave will be granted to any dependants of the main applicant who come within thedefinition and were in the UK at the date of the announcement.
Exclusions
The concession will not apply to a family where the principal applicant or any of the dependants (using the definition of a dependant as above in "granting leave in line to dependants):
have a criminal conviction for a recordable offence;
have been subject of an anti-social behaviour order or sex offender order;
have made (or attempted to make) an application for asylum in the UK in more than one identity;
should have their asylum claim considered by another country (i.e. they are the subject of a possible third country removal, but see also section on third country cases below);
present a risk to security;
fall within the scope of Article 1F of the Refugee Convention; or
whose presence in the UK is otherwise not conducive to the public good.
Criminal convictions
A criminal conviction means a conviction in the UK for a recordable offence that was unspent at the date of the announcement or a conviction abroad for an equivalent offence. It also includes a conviction for a recordable offence after the date of the
announcement.
A recordable offence is an offence that may be recorded in national police records in accordance with regulations made under section 27(4) of the Police and Criminal Evidence Act 1984.
A criminal conviction in the UK becomes spent after a period of time following conviction, depending on the length of the sentence. Caseworkers should consult a senior caseworker about excluding applicants on the basis of a criminal conviction.
Where criminal investigations are in train, or when court proceedings are pending, no decision should be taken on the case until the outcome is known.
Multiple identities
Applicants who fraudulently made or attempted to make a fresh claim for asylum in a different identity will be excluded.
This exclusion category does not cover applicants who changed their name/other details during the consideration of their claim, providing they did not attempt to mislead IND into believing they were applying as a new individual (i.e. they did not pretend they were a different person from the person who made the original claim).
Third country cases
Families will be excluded where they are all subject to possible third country removal.
Families where one member of the family made a claim before 2 October 2000 which has been accepted for consideration by IND and therefore is not subject to third country removal, and would otherwise fall into the concession, will not be excluded.
Limited Leave
Families where the principal applicant?s asylum claim was refused will be considered under this exercise, even where limited leave has been granted on other grounds.
Humanitarian Evacuation Programme
Kosovan families who arrived under the Humanitarian Evacuation Programme before 2 October 2000 but did not claim asylum until after this date, are included in the
scope of this exercise if they meet the necessary criteria.
Discretionary consideration
This note sets out the principles which will ordinarily be applied in operating this policy. Consideration will be given to exercising discretion to grant ILR, however, where ILR does not fall to be granted under the terms of the policy set out here. Such discretion will be exercised only in the most exceptional compassionate cases. Families who believe that their circumstances merit consideration on this basis must provide full details and supporting evidence.
Discretion should not be exercised without referral to a senior officer and Ministers must always be consulted before discretion is exercised in a case involving a criminal conviction for a recordable offence.
Contact Details
Group B, Asylum Policy Unit, AAPD.
