Immigration Rule Changes: Families

The Secretary of State for the Home Department is at it again, bringing in a raft of changes to the Immigration Rules relating to family members of non-European Economic Area migrants. The SSHD wants to ensure those who come here 'can do so only on the basis of a genuine relationship, that once here they can pay their way, and that they can integrate properly into British society’. If not already, the chances come into force on 09 July 2012.

Now that we've survived the rush to help as many people as possible to apply before 09 July 2012 we can catch our breath, sit down, and update you on what is changing. We suggest you also take a seat...

Income Thresholds for Partners*, plus Children

The SSHD has placed a minimum income threshold of £18,600 for those wishing to sponsor the settlement of a partner in the UK. That threshold will increase with each additional child under the age of 18. With one child it increases to £22,400 and an additional £2,400 for each further child. What a child alone 'will cost' is not yet clear. The financial requirement does not apply to children who are British.

The SSHD will no longer accept financial support from third parties / other family members. Gifts (and therefore not loans) can be included. Savings over and above £16,000 can be used to offset any shortfalls in income.

Where the sponsor is in receipt of any of the following disability-related benefits the applicant will be exempt from the financial requirement:

- Disability Living Allowance.
- Severe Disablement Allowance.
- Industrial Injuries Disablement Benefit.
- Attendance Allowance.
- Carer’s Allowance.

The applicant still will be required to demonstrate that they will be adequately maintained and accommodated without direct recourse to public funds.

Settlement for Partners

As it currently stands, when the SSHD allows a partner can join their UK based partner, s/he is given a 2-year residence permit, and before that expires s/he can apply for permanent residence. The changes increase the initial probation period from 2-years, to 5.

For those who have lived together overseas for at least 4-years, they could currently obtain permanent residence from the outset. From 09 July 2012 s/he will be given a 5-year probation period before being eligible to apply for permanent residence.

The 5-year period will be reached in two periods of 30-months, which means two applications, and two UKBA application fees, before being eligible to apply for permanent residence (and another application, and UKBA fee).

An applicant for further leave or indefinite leave to remain on the five year family route who fails the new financial requirement will be granted further leave on the 10-year route if they qualify for it on Article 8 grounds. Those on the 10-year route will not have automatic access to public funds.

Genuine Relationships

The SSHD will publish guidance setting out a list of factors which she associates with a genuine relationship, so if your loving and long-term relationship does not meet these factors it will not be considered genuine.

Adult Overseas Dependent Relatives

Following the changes, adult dependent relatives will only be able to apply from overseas, and not (as they currently can) in-country. And they can only do so if they demonstrate that, as a result of age, illness or disability, they require a level of long-term personal care that can only be provided in the UK by their relative here and without recourse to public funds. It will also only apply to immediate family members, therefore aunts and uncles will be excluded. In changing this route the SSHD pointed out that it was ‘far too easy’ to come here under the current rules.

Life in the UK Test

From October 2013, everyone applying for permanent residence will be required to pass the Life in the UK test and present an English language speaking and listening qualification at B1 (currently A1) level or above. Those aged 65 or over, or have a physical or mental condition that prevents them from meeting this requirement, will be exempt.

Long Residency

The current rules allowing for those who have been in the UK illegally for 14-years to apply for permanent residence will be scrapped and replayed with a 20-year threshold.

Article 8

The new approach to Article 8 has already started. The rules sets out the SSHD's stricter interpretation of Article 8, Family and Private Life, under the European Convention for Human Rights. Unsurprisingly, it contradicts the interpretation of national and European courts. The SSHD asks that the courts interpret Article 8 in-line with the interpretation with the rules. However, the courts will eventual rule in many cases that the rules are incompatible with European law. Inevitably the SSHD will blame the courts for allowing people to remain in the UK, and 'winning' a PR battle.

Discretionary Leave

Discretionary leave is effectively being removed. If someone cannot meet the rules or leave outside of the rules on an exceptional basis (which appears to be so exceptional that the SSHD does not believe it will ever occur) they will be expected to leave to the UK.

Those who applied before 09 July 2012 under any of the rules, but do not qualify for the rules they applied for, will not be considered under the discretionary leave policy. Their application will instead be refused, and any further application must be made on the new rules.

Criminality

Those with criminal sentences of under 4-years will normally be deported unless (i) they have a child and it is unreasonable to expect that child to leave with the parent and the child cannot be cared for by other family members in the UK, and the child is British / lived here for the last 7 years; or (ii) they have been in the UK lawfully for at least 15 years, while in a genuine and subsisting relationship with a British / settled / refugee / HP partner, and there are unsurmountable obstacles to continuing family life with their partners overseas; or (iii) they have been continuously resident in the UK for at least the last 20 years (excluding any period of imprisonment) and they have no social, cultural or family ties with their country of origin, or they are aged under 25 years and have spent at least half of their life residing continuously in the UK (excluding any period of imprisonment) and they have no social, cultural or family ties with their country of origin. Still with us?

For those with sentences over 4 years, it will only be in 'exceptional circumstances', that family life, the best interests of the child, or family life will outweigh criminality.

The new criminality requirements apply to all cases decided after 09 July 2012, therefore, it does not matter if the application was made before.

What happens if I applied before 09 July 2012?

A person who has been granted or has applied for leave based on the family rules before 09 July 2012 will remain subject to the old rules. But they will nevertheless have to meet the new Life in the UK Test rules (subject to the exemptions).

In Summary

If there is anyone still out there yet to apply, please do so. Now.



*Partner includes fianceĢ(e), proposed civil partner, spouse, civil partner, unmarried partner or same sex partner, unless otherwise stated

Family Visit Appeal Rights

The UKBA are changing the appeal rights for refused family visit visa applications. This is being done, they say, to save money.

The Immigration Minister Damian Green says that they are not stopping anybody from visiting family in the UK (mmm) but it is unfair that the taxpayers have to cover the costs of the appeals. Though, no mention was made as to general poor quality decision making by the UKBA at the visa application stage, which is obviously the cause for many appeals. Instead, Green blames applicants for not preparing the applications properly.

The change will be included in the Crime and Courts Bill, and is expected to come into force by 2014. In the meantime, the UKBA intends to limit the rights of appeal for those applying to visit a cousin, uncle, aunt, niece or nephew. From July 2012 refused applicants will still be able to appeal on limited grounds of human rights or race discrimination. From July 2012 until 2014 those visiting a spouse, children, or parents will continue to have full appear rights.

The UKBA will also limit the rights of appeals for those visiting people with leave to remain other than indefinite leave, refugee status or humanitarian protection status.

We will keep abreast of these changes and update you as and when needed.

English Language Requirement for Family Members

The legal challenge against the English language requirement supported by Liberty and the Joint Council for the Welfare of Immigrants in the case of R(Chapti) v SSHD [2011] EWHC 3370 (Admin) 16 December 2011 failed.

Permission to appeal to the Court of Appeal was granted. The court however did decide that Article 8 (family life) of the European Convention on Human Rights will always be engaged in cases involving the refusal of entry clearance/leave to remain applications involving spouses. Also, it may be arguable that the English language requirement would be a disproportionate interference in that Article 8 protection but it will depend on the individual facts of each case.

More when we have it.

Families of Migrants

The government are looking at making changes to the rules that allow family members to reunite and live with migrants who have already achieved full settlement (permanent residence) status. The proposed changes, which unsurprisingly make the system tougher, include:

  • Five-year probation period before family members are allowed to apply for settlement.
  • The migrant will be required to demonstrate a higher level of income.
  • The family member, on applying for settlement, will need to demonstrate they have qualified an English language course equivalent to level B1 on the Common European Framework of Reference (Cefr).

Under the proposals the unemployed or those living on less than around £5,000 a year would be banned from applying to come to the UK. The family member, once in the UK, will be denied access to welfare benefits during the 5 year probation period.

The government are also looking to change the human rights protection to allow deportation of family members who have been living illegally in the UK.

If implemented, the proposals would be far stricter than those in force in most EU countries, the US and Canada, says Thomas Huddleston, a researcher for the Brussels-based Migration Policy Group.

Certificates of Approval to Marry

The Certificate of Approval to Marry Scheme was abolished on 9 May 2011.

The certificate of approval to marry requirement was introduced in February 2005 as part of a package of measures by the Government designed to deter persons without indefinite leave to remain from entering into marriages of convenience ('sham marriages') for immigration purposes.

The scheme required persons, who were subject to immigration control, did not hold indefinite leave and who wished to marry (other than in the Anglican Church) or register a civil partnership in the UK, to apply to UKBA for prior approval and pay a fee.

The Courts concluded the scheme to be an unlawful interference with the fundamental right to marry.