[2024] UKUT 00144 (IAC)

I have not been referred to the Respondent’s family ILR policy, which Chapter 55 cites, but I understand it to be the concession cited in JS (Family ILR Exercise, near-miss argument) [2007] UKAIT 80 thus:

“The Family ILR Exercise

4.

The “ILR concession” referred to was, in fact, the Family ILR Exercise, as described in APU Notice 4/2003.

5.

As originally formulated and announced by the Home Office on 4th October, 2003, under the Family ILR Exercise, a family with dependent children would be granted indefinite leave to remain in the United Kingdom (ILR) outside the Immigration Rules, if the application for asylum was made before the 2nd October, 2000, and the applicant for asylum at the time of the application “has” at least one dependant “currently” aged under 18 who “has been living” in the UK since 2nd October, 2000. Provided the family were still present, neither the refusal of asylum nor the grant of limited leave, removed eligibility under the exercise. To qualify, the dependant, since 2nd October, 2000, and on 4th October, 2003, had to be a child of the applicant, or of the applicant’s spouse, aged under 18 and financially or emotionally dependent on the appellant and part of the family unit. Once an applicant for asylum met that criteria, leave would be granted in line with that grant to all dependants who met the basic criteria; a dependant for these purposes was a spouse, a child of the applicant or spouse, who was dependent on and formed part of the family unit on 24th October, 2003. APU Notice 4/2003 contains exclusions inter alia in respect of dependants having criminal convictions, or who present a risk to security, or whose presence in the United Kingdom is not conducive to the public good and for other reasons set out in the notice.”

The appellant was not granted ILR pursuant to any general concession, nor under one relating to family membership. The grant was based on his own individual circumstances, which included his representations as to his nationality and identity, in the context of a significant dose of Home Office maladministration. One can envisage cases under the family ILR policy just cited where one family member obtains ILR based on the family’s general circumstances, not their own, where a decision maker might reasonably conclude that that individual’s previous dishonesty, in the language of paragraph 55.7.4, “may be irrelevant”. For example they might have been a minor at the time or to have been under some mental impairment meaning that they could not reasonably be held responsible for a dishonesty perpetrated in their favour. Indeed this seems to be just the scenario that was envisaged by Chapter 55, once one reads it in the context of the family ILR policy, whereby leave was granted in line with that grant to all dependants who met the basic criteria. Or one can imagine a country-oriented policy that might have benefitted nationals from their true country of origin such that the fact that the grant of leave was motivated by some other concession made no material difference to their immigration history prior to naturalisation.