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New Statement of Intent on family migration


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Fresh off the press is the Government’s Statement of Intent: Family Migration which proposes not just to change but to direct the way in which the UKBA and Courts decide Article 8 cases. FM has recently discussed whether it is legally permissible to do this but, for the time being we thought it best to leave any more analysis of the changes to later and just give you the bare bones.

The document makes absolutely essential reading given that most of the major changes will take place in less than a month’s time.   There are transitional arrangements and additional transitional arrangements to be scrutinised at paras.132 to 135 of Statement and at Appendix E which sets them out in table form.   The key date is 9 July 2012.    We ignore it at our peril.

Don’t shoot the messenger:

Article 8 & Family Life (paras.27-53)

Worryingly, the Statement repeats Theresa May’s recent media pronouncements that the approach taken by the UKBA and the courts has  ‘…detracted from clear, consistent, predictable and transparent decision-making’ (para. 30) and that ‘…new Immigration Rules will unify consideration under the Rules and Article 8, by defining the basis on which a person can enter or remain in their private and family life’ (para 31).  Enshrined in the new rules will be the Government’s view of the public interest, how ‘the balance should be struck between the right to respect for private and family life and the public interest safeguarding the economic well-being of the UK…’ (para.33).

The Statement then talks of the ‘...public policy vacuum’ left in the wake of Courts who  ‘…cannot give due weight systematically to the Government’s and Parliament’s view of where the balance should be struck, because they do not know what that view is’ (para.37).  The ‘vacuum’ will be filled by rules setting out the Secretary of State’s view.  It says that ‘…proportionate rules will make for decisions compatible with Article 8’ (para.38). And there was me worrying.  Wait.  ‘Where the rules have explicitly taken into account proportionality, the role of the Courts should shift from reviewing the proportionality of individual administrative decisions to reviewing the proportionality of the rules’ (para.39) ‘...The starting point of such a review will be that Parliament has decided how the balance should be struck.  Although Parliament’s view is subject to review by the Courts, it should be accorded deference due to a democratic legislature…’  (And I’m not making this up) ‘…If proportionality has already been demonstrated at a general level, it need not, and should not, be re-determined in every individual case’.  (para.39).

If the requirements of these new Article 8 Immigration Rules are met, then the applicant will be able to reach settlement in 5 years (the so-called 5 year family route) (para.14).

Discretionary Leave will no longer be granted under Article 8 if the person does not meet the requirements of the rules (para.44).   Instead, the person can apply for leave on a ’10 year route to settlement’ (para 45) permitted a grant of indefinite leave to remain after 10 years in line with the current paragraph 276B(i)(a) of the rules (para.46).

Children (paras.54-57)

The family Immigration Rules will set out a ‘…clear framework for weighing the best interests of the child against the wider public interest in removal cases’ (para.55).    The ‘key test for a non-British  citizen child remaining on a permanent basis is the length of residence in the UK of the child – which the Immigration Rules will set at at least the last 7 years.’ (para.57).

Article 8 and Private Life (paras.58-64)

Whilst the 10 year rule will remain, the 14 year rule is to be abolished (para.58).   The Immigration Rules will provide that, for leave to remain on the basis of private life in the UK, the applicant must:  have resided continuously in the UK for at least 20 years (discounting any period of imprisonment); or  be under the age of 18 years and have resided continuously in the UK for at least seven years; or be aged 18 years or above but under 25 years and have spent at least half their life residing  continuously in the UK; or be aged 18 years or above, have resided continuously in the UK for less than 20 years but have no social, cultural or family ties with their country of origin (para.60).

Article 8 & Criminality (paras.65-69)

The new rules will go beyond the Borders Act 2007 in expressly providing that only in ‘exceptional circumstances’ will family life, the best interests of a child or private life outweigh criminality and the public interest in seeing the person deported where they have received a custodial sentence of at least four years (para.69).

Deportation will ‘normally be proportionate’ where the foreign national criminal has received a custodial sentence between 12 months and less than four years, or has received a custodial sentence of less than 12 months and, in the view of the Secretary of State, their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law.

When will deportation not be proportionate?  Hardly ever.  If:  ‘…they have a genuine and subsisting relationship with a partner in the UK (who is a British citizen, settled in the UK or in the UK with refugee leave or humanitarian protection), and they have lived here with valid leave continuously for at least the last 15 years (excluding any period of imprisonment) and there are insurmountable obstacles to family life with that partner continuing overseas; or they have a genuine and subsisting parental relationship with a British citizen child or a child who has lived in the UK for at least the last seven years, and it would be not be reasonable to expect the child to leave the UK with the foreign national criminal and there is no other family member who is able to care for the child in the UK; or 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)’ (para.68).

I think therefore we can safely say that is an ‘exceptional circumstances’  test.  I can’t think of any of my recent clients who would satisfy those requirements.

New Financial Requirements (paras.70-89)

Poor people to be prevented from marrying?   Very possibly.  For a British citizen or settled person to settle a non-EU fiancé(e), civil partner, spouse, unmarried partner etc the Rules will  set a minimum gross annual income threshold of £18,600 There will be a higher threshold to sponsor a child under the age of 18 before the partner reaches settlement:  £22,400 for one child in addition to the partner and an additional £2,400 for each further child.   The relevant minimum income level will apply at every application stage: entry clearance/leave to remain, further leave to remain and indefinite leave to remain (settlement) (para.74).  This will replace the existing maintenance requirements under the current rules as reflected in cases such as  KA(Pakistan) but it will not affect PBS workers or students wishing to bring their partner to the  United Kingdom (paras.75 to77).

There will be no discretion or flexibility with regard to the level of the financial requirement and no account will be taken of any past or prospective employment/earnings of the migrant applicant; and promises of financial support from third parties will not be accepted, although gifts are prima facie acceptable as is the provision of accommodation (para.83).  The higher financial requirement will continue to apply until the migrant partner achieves settlement on the 5 year family route (para.88).

Genuineness of Relationship & the New Probationary Period (paras.96-108)

There will be guidance published on how entry clearance officers and other caseworkers ‘..make informed, consistent decisions based on evidence’.    The examples given of the factors that will be included in the guidance are – dare I say it – rather obvious and ones which an applicant’s representatives have always had in mind (if not ECOs themselves).

The probationary period will be extended from 2 years to a minimum of 5 years before partners can apply for settlement on the family route.   This requirement will extend to partners of PBS migrants who must show that they have been in a relationship with them in the UK for 5 years as well as serving the 5 years on route to settlement (paras.105-106).

Bereaved partners and victims of domestic violence will continue to be eligible for immediate access to indefinite leave to remain (paras.107-108).

Settlement (paras. 109-125)

Couples who have lived outside the UK for 4 years or more will still have to complete the 5 year probationary period (para.110).

For couples in the United Kingdom, the Immigration Rules will require that, subject to reasonable periods of separation, that they can show at every stage that they intend to live together permanently in the UK (paras. 111-112). From October 2013, all applicants for settlement will have to pass the Life in the UK Test and obtain an English Language qualification in speaking and listening (Level B1) (paras.114-115). For Adult Dependent Relatives, there will be no switching into the settlement category (para.118-119) and will be limited to parents, grandparents, sons, daughters, brothers and sisters (para.120).   Purportedly reflecting the ‘..intended thrust of the current rules’ (para.123), those parents or grandparents aged 65 or over will now have to 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 and without recourse to public funds’ (para.121).    The sponsor will not have to meet the new financial threshold of £18,600.

Refugee Family Reunion (paras.129-131)

Much stays the same here but the changes will affect sponsors of post-flight partners, dependents and children who will be subject to the new income threshold and probationary rules.

There you go, for the moment anyway.

This time last year in her 2011 Gray’s Inn Reading, Lady Hale said this:

‘…As a supporter of the Convention and the work of the Strasbourg Court, my plea to them is to accept that there are some natural limits to the growth and development of the living tree.  Otherwise I have a fear that their judgments, and those of the national courts which follow them, will increasingly be defied by our governments and Parliaments.  This is a very rare phenomenon at present and long may it remain so.’

This Statement of Intent to my mind represents one such act of defiance.

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Iain Palmer

Iain Palmer is a barrister at Lamb Building specialising in immigration and refugee law.


25 Responses

    1. Nothing like the 7 year child concession of old. This does not lead to ILR. To acquire ILR, the child need to apply for at least 4 times each for 30 months. The parents do not benefit from it either. Have the framers of this new rules ever wondered why any 7 year old would have no leave? The parents of such a child will in most cases also have no leave. So how can the parents without leave even survive in this country without any rights for 20years to help the child who is given this sort of leave after seven years?

  1. Is the 18600 rule legal and can it be challenged? I myself am married to a Albanian man we intend to apply for a spouse visa but first he has to do his English exam and will not get the results until the 14th July just after the deadline . I work full time , own my own home but I am just under the limit does this mean we can never be together as a family . I would contemplate going to live in his country if I didn’t have my daughter who is receiving on going medical treatment for severe anxiety and is due to start college in September I feel like my hands are tied. We don’t want to claim benefits all we want to do is work hard and live a normal happy family life together. Will this now be made impossible .

    1. im sorry to hear this,im very similer situation as my wife doesnt work got ill health with a year old baby does this mean we will never be togather?as i cant live without them i got money and my brother is suporting me but its just so hard to read all these things,,,

  2. Dastardly me & Mutly are not happy with Mrs May and her new laws.

    Oh well, Singh and Zambrano will become the new routes, via Ireland I suspect.

    Most benefits revolving around children can currently be claimed where one parent in a couple has ILR/Citizenship anyway.

    The main question I can’t find in the details are the extent of the transitional arrangements. eg if someone is currently one year into a two year spousal visa, do they still get ILR in one years time? What about those on the DLR route etc?

    For those who have already spent 4 years abroad, I don’t understand the need for a further 5 years.
    The UK passport after 3 years for spouses will soon become a redundant part of the BNA.

    The raising/abolishing of the 14 year rule was predicted by FM.

    The UKBA consultancy exercise has once again ignored the respondants and gone ahead with its proposals. Why bother consulting, to waste time & money?

    When will UKBA implement Zambrano? Its six months beyond the deadline, and in three months they may have to start to re-issue COAs as the old ones expire.

    1. “When will UKBA implement Zambrano?”

      Hmm, at the current rate, probably when the courts have applied it several times and they can no longer get away with being silent on it.

  3. @ Tidyme
    I think you should be fine. If you’ve been given one year, you will still get ILR at the appropriate time.

    1. @Angela….a BIG PHEW for my other half then….that’s hoping you are correct. I am 61 and have no job, but support myself through savings. My wife has a job, but would struggle to satisfy the 18k rule.
      Now the EU Family route will become the main option. I know of two people actively following that route into the UK, unbelievably, that have been a couple for several years and have a child together. But they will get married to an EU citizen each and get the permission to work, live in the UK.

    2. Transitional arrangements:
      Spousal/Partner visa’s (2 years)and DLR routes (6 years) will continue for those already on those routes – see paras 132 & 134 near the end.

      Angela – I’m British, the example wes theoretical. Thanks anyway, I thought it was quite sweet of you.

      The income limits of £22400 + 2400 per child above 1 do not usually apply. It only applies when the child is not British. Offspring of the marriage are usually British due to the sponsor requiring ILR or Citizenship. It refers to eg step-children.

  4. Robbo do I understand correctly that the two people you know will be marrying an EEA citizen just to enter the UK without being in a relationship with that spouse? That involves criminal offences (such as deception) and can result in removal and ban. If they are already in the UK they should discuss with an OISC advisor/a solicitor whether they should apply for discretionary leave. Aside from that entering sham marriages makes it much harder for those who are genuine.

    Apologies if I have misunderstood your comment on what the couple in question intend to do.

    The EU family route means ECJ Singh, that a British spouse lives in another EEA state with the migrant spouse and is employed or self-employed there and then the couple can enter the UK under the EEA rules. Yes unfortunately some people will now have to look into it even if they had not intended such a move.

  5. What is the point of having a right to a private life if the applicant is between 18 and 25, and has spent more than half of their life residing in the uk if they can just apply through 10 years of legal residency? Does it then apply for illegal residency too?

  6. Hi all.. does anybody know if an application for spouse indefinite leave to enter and a visit visa can be applied for whilst one application is being decided? A client wants to apply for indefinite leave to enter before the 4 year rule is abolished and apply for a visit visa to enter in the next month for personal reasons.

    1. No, because the passport will be with the consulate. And you can’t get ILE unless you have taken the LIUK test.

  7. Of course – how dense of me!

    Is it still the case that the BHC grant entry subject to the Life in the UK test being taken in the UK and then convert to ILE in the UK?

    Also, does anybody know whether the new family migration rules will require the new income threshold for access to children also? (the income threshold does not apply to dependent children as per the last few pages)

  8. A well written example of how the new rules are interfering with peoples rights. Good luck whatever you do.

    Aaron you have another option, if you live and are employed and/or self-employed in another EEA state, your wife can join you there and can work. Your child can reside there too. After a period of time (not fixed, but not more than six months) of genuinely living there together, your wife can come back to the UK with you under the European rules, that means no income and accommodatzion requirement. Research ECJ Singh if interested. I suspect many more poeple will be doing this than did in the past.

  9. So to sponsor a dependant parent they have to be in such poor health that they can’t dress or bathe themselves…while Ms May appears to be generous in not applying the income threshold here, obviously to show they can be looked after without recourse to public funds you would need to have a much higher income, and be able to show that this income would not provide them with the required level of care in their home country. Perhaps it would have been better if it was quantified! I would be interested in knowing who would satisfy the adult dependant criteria and still be in good enough health to take the flight to reach the UK. My guess is no one.

  10. My 1st child going to be 7 years old by September , and I am illegal here , we have been battling court cases to fight against the removal of the the whole family ( I , my wife and another child ). Can we now apply for my daughter leave to remain along with the family after her 7th year birthday ? And will all of us be eligible to be in that application ?

  11. Somebody please explain this to me please I am only 15 so i don’t understand most of what i just read! I came to england back in March 2003 when i was just 6. I have been here for cleary more than 7 years, yet my family and i re still battling with immigration since 2008. does the seven year rule not apply to us then? Is this new change going to benefit my family and be in our favour or is it against us? We are arguing our case under article 8. If anyone could break the Children (paras.54-57) and Article 8 and Private life it would be so helpful.

  12. hi, i thank if d 7yrs 4 a child should cover d family bcos what applies to d child applies to d parents as long as they are responsible for & have a genuine relationship with d child but a good solicitor will be needed & God’s grace too.