If you are living in the UK without valid permission, you will be classed as an illegal immigrant and you could face deportation. Everyday life will be difficult as you won’t have the right to work or to access free healthcare or benefits.
Even people who enter the UK lawfully can find themselves become an illegal immigrant. Perhaps you have overstayed and not left the country, despite an expired or curtailed visa, or a refused immigration application.
Depending on your circumstances, there may however be ways that you can make your status legal.
Regularising immigration status as an illegal immigrant
If your visa been expired for more than 14 days, it is likely any application for an extension of your visa will be refused, unless exceptional circumstances apply.
If you have been living in the UK unlawfully, you may be able to regularise your status by applying to the Secretary of State to grant a period of discretionary leave outside the Immigration Rules.
Some of the more common applications for discretionary leave are where individiuals can show strong connections and family in the UK and where deporting you would impact your human rights.
For example, it may be possible to remain in the UK lawfully if:
- Your partner has a right to stay in the UK – for example they are a British citizen or an EEA citizen with settled status.
- You have children in the UK, particularly if they are British citizens, have settled status or have been in the UK for 7 years or more.
- Returning to your home country would be dangerous due to persecution.
- It would be extremely difficult for you to live in your home country due to a lack of work, education, family or friends, or if you wouldn’t be accepted back there.
- Your last visa was as a partner and you’ve suffered domestic abuse at the hands of the partner related to your visa.
Article 8 of the European Convention on Human Rights & Appendix FM
In some circumstances, you may be able to apply to regularise your immigration status under Article 8 of the European Convention on Human Rights (ECHR).
Article 8 of the ECHR incorporates the right to respect for family and private life and can provide a range of different routes to obtaining leave to remain.
You can make a formal Article 8 application to the UK Home Office. Each application will be considered on a case-by-case basis, taking into account your individual circumstances.
It will be important that any case you put forward for discretionary leave is accurate and comprehensive, evidencing, for example, an established family life, lengthy UK residence and a clean criminal record.
If discretionary leave is granted, you gain the right to live and work in the UK.
Applying for leave to remain in the UK on the basis of family or private life is often referred to as the ‘partner, parent or private life route’ (Appendix FM Section 1). In this way, you may become eligible to apply for settlement 10 years after you are first granted leave.
The partner route is potentially available to those in the UK as the partner of someone who is British or settled in the UK, or is in the UK with limited leave as a refugee or granted humanitarian protection.
A partner includes a spouse, civil partner, fiancé(e) or proposed civil partner, or who has been living together with the applicant in a relationship akin to a marriage or civil partnership for at least 2 years prior to the date of application.
The parent route provides a basis on which leave to remain can be granted to a parent who has sole responsibility for, or direct access to, a child living in the UK. Here the child must be either a British citizen, or has lived in the UK continuously for 7 years immediately preceding the date of application and it would not be reasonable to expect the child to leave. Where children are involved, there will be consideration of the child’s best interests, which should not generally be affected by the conduct or immigration history of the parent(s).
The private life route may also be available to you if you have lived in the UK for a significant length of time, in particular:
- You have lived continuously in the UK for at least 20 years.
- You are under the age of 18 years and have lived continuously in the UK for at least 7 years, and it would not be reasonable to expect you to leave the UK.
- You are aged between 18-25 years and have spent at least half of your life living continuously in the UK.
- You are aged 18 years or above, have lived continuously in the UK for less than 20 years, but there would be very significant obstacles to your integration into the country to which you would have to go if required to leave the UK.
Different suitability and eligibility criteria apply to each route, with stringent requirements weighing against a successful application where an applicant has been living in the UK unlawfully for prolonged periods of time. However, if there is evidence of exceptional circumstances that would render refusal a breach of Article 8 because it would result in unjustifiably harsh consequences for the applicant or their family, then leave to remain may still be granted.
The Home Office will take into account the circumstances around the applicant’s entry to and stay in the UK, as well as the proportion of the time they have been in the UK legally as opposed to illegally.
If your application is successful, you will be granted limited leave for 30 months. You can apply to extend this period of leave when it is due to expire. After spending a total of 10 years on limited leave, you can then apply for indefinite leave to remain.
Returning to your home country
You may also be considering whether it is possible to return home but are concerned about the costs or future immigration implications.
If you elect to return to your home country voluntarily, you may be able to get help to arrange and pay for your journey. This is known as an assisted voluntary return.
If you choose to leave voluntarily, you can apply to return to the UK between 1 to 5 years depending on your circumstances.
If you are detained by the Home Office as an illegal immigrant, you face being deported. If you are deported, you will be banned from returning to the UK for 10 years. If you are facing deportation, you should seek legal advice immediately.
Children as illegal immigrants
It will be important to take advice if you have a child that is in the UK without lawful status. It’s likely you will need to make an application either for indefinite leave to remain or to register their British citizenship.
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.