Since 9 July 2012 if you wish to apply for a visa to remain in the UK on the basis of your family or private life you must apply under one of the family or partner routes as prescribed in the Immigration Rules.
The right to family/private life provisions are set out in Article 8, Schedule 1 of the Human Rights Act 1998 (which incorporated the European Convention of Human Rights). They are as follows:
Right of respect to private and family life
1) Everyone has the right to respect for his private and family life, his home and his correspondence.
2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
However, the UK Border Agency has announced that it will not consider any application made on the basis of family or private life under the following categories:
- Tier 1 (Exceptional talent);
- Tier 1 (Entrepreneur);
- Tier 1 (Investor);
- Tier 1 (General);
- Tier 1 (Graduate entrepreneur);
- Ter 2 (General);
- Tier 2 (Minister of religion);
- Tier 2 (Sportsperson);
- Tier 2 (Intra company transfer);
- Tier 4 (General);
- Tier 4 (Child);
- Tier 5 (Temporary worker – creative and sporting);
- Tier 5 (Temporary worker – charity workers);
- Tier 5 (Temporary worker – religious workers);
- Tier 5 (Temporary worker – government authorised exchange);
- Tier 5 (Temporary worker – international agreement); or
- Tier 5 (Youth mobility scheme).
If applicants want UKBA to consider an application on this basis they must apply under the ‘correct’ route, using the appropriate application form:
- FLR(M) for the 5-year partner or parent route;
- FLR(O) for the 10-year partner or parent route; and
- FLR(O) for the 10-year private life route.
We expect that these sweeping restrictions, seemingly in contravention of the 1998 act, will be challenged in the Courts in due course.