The above question is something I have been asked on a number of occasions by clients who have come to see me as the direct access immigration barrister in the last month or so. The clients who have come to see me have had leave in the UK continuously but the leave is due to come to an end leaving them 1 year – 2 years short of the 10 year ILR rule of Paragraph 276B of the Immigration Rules HC395 (as amended).
If I was asked this question a year ago or two I would have said the chances were slim. Now I’m not so sure and consider for the reasons set out below that such people actually have good prospects of getting to the 10 years required under paragraph 276B of the Immigration Rules.
The reasons for this are complicated in some way and simple in another. What used to happen a few years back was that an application for leave outside the rules under article 8 on the FLR (O) form would take around 2 years to process. There could then be a delay of six months or so before the appeal. However around a couple years ago the Home Office started to make much quicker decisions, it was common to see FLR (O) applications being decided within 2 months, indeed this is something to applaud as those with proper and valid claims want, in my experience a prompt and accurate decision on their case. Appeals were being faxed off on, say a Monday and on Wednesday an appeal date would be forthcoming within one month.
However things have now changed, its taking the Home Office still around 2 -3 months to determine FLR (FP) applications. There is then the period to appeal and then the things start to run slow. I have been informed by numerous Immigration Judges that from October the number of Courts are being halved. I am not seeing a slow down in work nor are my contemporaries, indeed the reverse is true.
The consequence of this is that appeals were being adjourned to July / August next year, a delay of a year.
If this was not bad enough, the Court have now not been able to give any dates. The Courts are so tied up as a result of what must be government inspired cost cutting that they cannot list cases. This leads me to thinking that an application made say in a month (August) would lead to a refusal in October – December with an appeal over a year afterwards. This means that if an individual who has completed a Tier 4 course and has 8 years 4 or 6 months leave stands an excellent chance of getting to the 10 years required. For someone who is committed to the free movement of people this means that clients are now more likely to succeed than before.
Given the above if you are around 8 years or so and your visa is coming to an end and you are interested in staying in the UK I would advise you to seek professional advice, I would be happy to see you and advise on the individual prospects of your case, if you do not choose to see me, then please see a reputable lawyer. I say this as it is vital in my view to make the best application you can at the very outset in order to give your case the best chance of success. It is a very strange state of affairs to be in where the government talks about wanting to reduce net migration while at the same time choking the Courts in order that they cannot make proper and prompt decisions on appeals.
Paul Turner is a highly regarded direct access immigration barrister and is the head of Imperium Chambers, Grays Inn Buildings, Grays Inn, he also practises from Mansfield Chambers, the Chambers of Michael Mansfield QC, 5 Chancery Lane, London, WC2A 1LG and a door tenant at 39 Park Square Leeds LS1 2NU and is licensed by the Bar Council to provide advice and representation directly to the public.