Immigration Law – A Notoriously Complex Field

As immigration lawyers, we often find our area of expertise dominating the headlines. Given the complex and ever-changing nature of immigration law, news reports can on occasion demonstrate a misunderstanding of the issues at stake, and the below is a timely example.

Last week's Prime Minister's Questions was dominated by discussion of a "legal loophole" which purportedly allowed a family from Gaza to resettle in the UK by way of the Ukraine Family Scheme; a now closed visa route, introduced to allow eligible Ukrainian nationals with relatives in the UK to enter or remain in the UK on this basis. The exchange between Kemi Badenoch and Sir Keir Starmer garnered much press attention, with the newspapers reporting the issue in the same terms in which it was raised in the House.

A selection of articles from reputable mainstream news sources all assume that the family in question made an application for leave to enter the UK under the Ukraine Family Scheme, and that the Judge who granted their appeal did so on this basis. This reporting fails to recognise that it is open to any individual who believes they have a claim to enter the UK on the basis of the European Convention on Human Rights ('ECHR’), to make an application 'outside the Immigration Rules' i.e. to rely on human rights grounds rather than the Immigration Rules themselves. In this case the Gazan family made an outside of the Immigration Rules application. 

It is clear from the decision of the Upper Tribunal published on 28 January 2025 that the legal representations, submitted by the Gazan family's counsel with their application, explicitly acknowledged that they were not eligible under the Ukraine Family Scheme, and that they were making an application outside of the Immigration Rules on the basis of Article 8 ECHR. The confusion stemmed from the fact that, in accordance with Home Office guidance, "Applicants overseas must apply on the application form for the route which most closely matches their circumstances and pay the relevant fees and charges". In this case the Ukraine Family Scheme was chosen as the Gazan family were refugees with family in the UK, and at the date of their initial application this route was still open. 

The decision of the Upper Tribunal clearly states the decision is remade on Article 8 ECHR grounds, not on Ukraine Family Scheme grounds – the Gazan family made an outside of the Immigration Rules Article 8 ECHR application, using the most suitable application form available at that time. 

This matter has highlighted the complexities of immigration law and how easy it can be for the rules and processes to be mis-interpreted. It is for this reason we always recommend seeking the advice of an expert immigration lawyer, for all individuals seeking to enter or remain in the UK.