Juan Eu Konek

Immigration Amnesty for Undocumented Migrants?

By Crystal Dias

Partner,  Dias Solicitors

As a practising immigration solicitor, I often meet undocumented migrants in the UK who are unable to regularise their stay in the UK under the immigration rules but continue to live in the UK in the hope that maybe one day the Government will grant them amnesty.

A  petition was launched  in 2021 to the Government requesting that it “should grant amnesty to undocumented migrants who have been living in the UK for 10 years or more, and reduce the 20 year residence rule for Indefinite Leave to Remain (ILR). This should be decreased to 14 years. It is unjust.”

The Home Office responded:

The Government opposes the amnesty suggested and remains committed to an immigration policy which welcomes people to the UK through safe and legal routes but deters illegal immigration.

The Government remains committed to an immigration policy which welcomes and celebrates people here legally but deters illegal immigration. We must prevent the abuse of benefits and services funded by UK Taxpayers, remove immigration offenders and foreign national offenders from the UK and disrupt the organised crime groups who prey on the vulnerable.

Offering an amnesty to those who have lived in the UK unlawfully would send out the wrong message at a time when there is growing public concern about the level of illegal migration, and would not align with our plans for a firm but fair immigration system. We are attempting to reduce pull factors that cause illegal migration and increase the misery associated with people trafficking. The amnesty suggested would have the opposite effect.

The Immigration Rules already provide for undocumented migrants, who have not broken the law except for remaining here without lawful immigration status, who have been in the UK for a long time, to regularise their status. If appropriate in light of the situation in their country of origin, people may claim asylum or otherwise make an application for leave to remain where there are grounds to do so.

The Immigration Rules recognise individuals may have established a right to private life as enshrined in Article 8 of the European Convention on Human Rights (ECHR) even if at the time of applying they do not have a lawful immigration status. The private life provisions of the Immigration Rules therefore provide a 10 year route to settlement for an adult to remain in the UK if this adult: has lived continuously in the UK for at least 20 years; or, is aged between 18 and 25 years and has spent at least half of their life living here; or, has lived continuously in the UK for less than 20 years, but there would be very significant obstacles to their integration into the country of return. They also provide a route for children (under 18 years) who have lived continuously in the UK for seven years where it would not be reasonable for them to leave the UK. This reflects our obligations under Article 8 of the ECHR.

Alternatively, families can regularise their status under the family Immigration Rules where there is a qualifying partner or child (British or lived continuously in the UK for at least seven years) and it is unreasonable to expect family life to continue outside the UK or for the child to leave.

A fee waiver is available, to extend their stay, for those who cannot afford the fee, are destitute, at risk of destitution; or where there are welfare concerns for a child of a parent in receipt of a low income. Additionally, the Home Office recognises the need to assist some of the more vulnerable members of our society and provided for exceptions to the need to pay application fees in a number of specific circumstances, for example, in relation to refugees and persons deriving rights under European law, and wider government policy (such as the protection of spouses from domestic abuse and the protection of vulnerable children).

For those who do not meet the requirements of these Rules, there is provision for a grant of leave where there are exceptional circumstances or compelling compassionate grounds which would mean refusal would result in unjustifiably harsh consequences for the applicant. Each application is considered on its merits, taking into account individual circumstances. This reflects our obligations under the ECHR.

The Immigration Rules are kept under continuous review and adjusted where necessary in light of feedback, impact and the findings of the courts. However, our current assessment is they provide sufficient opportunities for vulnerable people to regularise their status without offering an amnesty which would benefit those who have wilfully abused the system and ignored the rules.”

It is unlikely that the Home Office will change its current stance on undocumented migrants soon.   Each case is different.  Do not hide in fear.  Know your options.  Seek legal advice from a professional who has a reputable background. 

Source: petition/parliament/uk