Early Concession on ILR
What is the policy?
On 25 October 2021, the Home Office introduced a new concession that creates the possibility for those aged between 18 and 24 inclusive to be granted indefinite leave to remain after having completed just 5 years’ limited leave in the UK. This is in recognition of the fact that it may be disproportionate to apply the public interest factors underpinning the 10 year settlement policy (described as “the need to serve a longer probationary period before qualifying for settlement, and the principle of encouraging lawful compliance”) to those who were either born in the UK or entered as children and were granted limited leave, who “cannot be considered responsible for any previous non-compliance with immigration laws” and who are now “fully integrated into society in the UK.”
Under the policy, an individual will only be eligible for “early” indefinite leave to remain where they meet the following criteria at the point of applying:
- They must be aged 18 or above and under 25, and must have spent at least half of their life living continuously in the UK (discounting periods of imprisonment)
- They must have either been born in or entered the UK as a child
- They must have held limited leave to remain in the UK for five years
- They must be eligible for further leave to remain under paragraph 276ADE(1) and must have made an application under those Rules
Once this initial eligibility screening has been satisfied, the decision-maker will then need to consider whether it will be “appropriate” (or “proportionate,” as it is alternatively described in the policy) to grant indefinite leave to remain. When undertaking this assessment, the policy directs the decision-maker to take into account a specific but in exhaustive list of factors:
- The person’s age when they arrived in the UK
- • The length of their residence in the UK (including unlawful residence)
- The strength of their connections and integration to the UK
- Whether unlawful residence in the past was the result of non-compliance on the part of the applicant or their parent/guardian whilst the applicant was under the age of 18
- Efforts made to engage with the Home Office and regularise status
- Any leave currently held and length of continuous lawful leave
- Any period of any continuous leave held in the past
- Whether (and the extent to which) limited leave to remain will have a detrimental impact on the person’s health or welfare
Who will benefit from the policy
The concession is targeted at young adults who were either born in the UK or were brought here as children, and were then granted a period of limited leave – on a 10 year route to settlement – in order to regularise their status. This most straightforwardly includes those who were granted leave under one of the private life categories in Part 7 of the Immigration Rules, under which applicants are granted 30 months leave to remain and must usually complete 10 years in the UK on private life grounds before becoming eligible to apply for indefinite leave to remain. It should also apply to those who have been granted discretionary leave outside of the Immigration Rules.
The concession also ought to apply to certain young adults who were granted limited leave on the 10-year route to settlement under Appendix FM as dependents on family members. The policy explicitly does not apply to young adults when the family member on whom they are dependent is eligible to apply under the Appendix FM 10 year route, since “they can be expected to continue to be granted in line with their parent, guardian or family member on whom they are dependent.” This means that the concession should be triggered by applicants who have completed 5 years leave to remain as a dependent on the 10 year route under Appendix FM; are now aged between 18 and 24; have resided in the UK for more than half of their lives; and where either they are no longer dependent on the family member who was the primary applicant, or that family member is no longer eligible (or is no longer applying) for further leave under Appendix FM.
In general, the concession should foster greater stability for the lives of many affected young people and brings Home Office policy closer in line with the established case law relating to the best interests of children, and in particular with the “sins of the parents” principle outlined by the Supreme Court in Zoumbas v SSHD  UKSC 74 (that a child must not be blamed for matters for which he or she is not responsible, such as the conduct of a parent).
Change In Policy
Following a legal challenge by Islington Law Centre and the Migrant and Refugee Children’s Legal Unit (MiCLU), and campaigning by the organisation We Belong, in October 2021 the Home Office announced a concession (a slight change in policy) for some young people who have been granted periods of limited leave and will eventually want to apply for Indefinite Leave to Remain.
December 2021 update – concession now available to young people even if they are over 24 years old.
The initial Home Office concession meant that only people aged 18-24 years old could benefit from this earlier qualification for Indefinite Leave to Remain (ILR). In December 2021, after working with the organisation We Belong, the Home Office guidance now allows people over the age of 24 to benefit. Note that the immigration rules on the initial leave to remain for young people still require you to be 24 or under – but once you are successful in applying for this leave, you can still benefit from the concession on ILR – qualifying after five years’ leave to remain rather than ten – if you are over 24 by the time you are applying.