The armed forces immigration rules: what are they, why do they exist and what are the challenges?

It’s been a year since the armed forces immigration rules were ‘simplified‘ and Appendix HM Armed Forces was published, replacing Appendix Armed Forces. This article highlights the anomalies within the rules created by the unique status of serving personnel, summarises the discretions in place for both serving personnel and families and examines the impact of the simplification process.

Background

The armed forces immigration rules were introduced in 2004 and have been through a number of revisions since then. Historically they were found under part 7 of the immigration rules and family members were granted leave either under part 7 or part 8, depending on the nationality of the soldier. 

Until 2010 families were considered to be on an employment (non-points based) route. They were later switched over to the family route and the application fees increased by nearly £500 overnight. 

In 2013 we saw the introduction of Appendix Armed Forces, mirroring Appendix FM but thankfully without the ‘alphabet soup’. Appendix Armed Forces was then withdrawn and replaced by Appendix HM Armed Forces on 11 April 2024.

While many of the requirements in Appendix FM and Appendix HM Armed Forces were the same, such as the minimum income and suitability requirements, armed forces families were given a number of discretions in reflection of their sponsor’s service. 

What discretions are in place for families

Family members of serving personnel do not have to pay the immigration health surcharge and are also given permission to stay for five years rather than two periods of 30 months. 

There is also a lower financial requirement. When the minimum income requirement for families applying under Appendix FM increased from £18,600 to £29,000 in April 2024, the minimum income for armed forces families increased to £23,496. This figure is aligned to the salary threshold of Other Ranks on completion of basic training and takes into account the unique nature of service as defined by the Armed Forces Covenant.

What is the immigration status of soldiers during and after discharge?

Serving personnel have a unique immigration status in the UK, so unique in fact that the Home Office can’t really decide what status they do have.

During service serving personnel are ‘exempt’ from immigration control under section 8(4)(a) of the Immigration Act 1971, which is evidenced by a vignette in their passport. According to section 8(5) of the rules this means they are also considered to be settled during service. It is important to understand here that having an exempt stamp prevents a serving person from applying for settlement until they have discharged.

The British Nationality Act 1981 reflects this status, as serving personnel are able to apply for citizenship without needing to hold indefinite leave first and any children born in the UK during their service are born British (section 1(1A) of the Act).

The recently withdrawn Passport Policy – Immigration & Right of Abode also confirmed:

Provided they are entitled to exemption from immigration control under Section 8(4)(a) IA 1971, (that is members of the home forces subject to service law) the passport holder may be classed as ‘ordinarily’ resident here and may be regarded as settled in the UK.

But unfortunately and confusingly, the Home Office recently stated that because the period for which serving personnel are allowed to remain in the UK is restricted to their length of service, they cannot meet the definition of settlement in section 33(2A) of the Act. This approach was confirmed in an email from the Home Office to Army Families Federation.

The reason that this distinction is important is that the more lenient provisions for children in paragraphs 297 and 298 of part 8 of the immigration rules are therefore not available to children of serving personnel. The Army Families Federation considers that preventing serving personnel from gaining settlement when they may have served for many years and treating them as though they are temporarily in the UK during that time, is in contravention of the Armed Forces Covenant.

Once discharged from the military, this ‘exempt’ status is cancelled. The serving persons unit must inform the Home Office of the date of discharge, who then issue a letter granting 28 days leave outside the rules.

Serving personnel then find themselves at the mercy of the immigration rules. If they wish to remain in the UK, they must make an application under Appendix HM Armed Forces. They are entitled to apply for indefinite leave to remain only as long as they have served for four years, but if they haven’t served for at least six years they must pay for their application to remain. 

Whilst serving personnel can apply for indefinite leave in advance of discharge, they cannot be granted indefinite leave until the actual date of discharge. Serving personnel have never had biometric residence cards and cannot currently get eVisas. Without a share code, serving personnel who are not British are therefore not able to prove a right to work in advance of discharge and as a result are often not able to line up a new job in advance.

If they meet the requirements they are usually granted indefinite leave to remain within a day of leaving; their applications are fast-tracked and it isn’t necessary for them to pay for priority service. However in more complex cases, for example where a serving person has criminal convictions or is discharging early for medical reasons, these applications can be delayed for a number of months. 

Unfortunately soldiers on discharge do not benefit from section 3C leave. They are instead granted leave outside the rules until a decision is made on their application to remain but this is subject to a prohibition on working or claiming benefits. This contributes to the risk of homelessness, because serving personnel also lose their service provided accommodation on discharge. 

It is therefore not surprising that many veterans and their families have to rely on charitable funds and emergency accommodation to get them through this period of time. This is particularly prevalent in medical discharge cases where the serving person can be discharged with 6 months’ notice. 

Thankfully the Home Office have recently agreed to change the conditions attached to the temporary leave to enable veterans to work and claim benefits, but it does beg the question why it was ever considered to be appropriate to impose such conditions in the first place.  

What if they haven’t served for four years? 

There are discretions in place for serving personnel who discharge for ‘attributable’ medical reasons but in reality the majority will not be granted indefinite leave to remain unless the injury was sustained on operations. The rules give caseworkers scope for discretion, allowing serving personnel to be granted permission to remain for 30 months in cases where further medical treatment is required.

This permission allows them to work and claim benefits. However, unless they can prove at the end of that 30 months that they are still receiving treatment or that their condition has deteriorated, they are likely to be refused further permission to stay. Many serving personnel who have been medically discharged end up becoming overstayers, are put on the ten year family/private life route or are given removal directions.   

What about the requirements for family members?

Despite being on the family route and therefore supposedly joining someone who is settled in the UK, the length of permission granted to family members is tied to the serving persons length of service (see paragraph 21.1 of Appendix HM Armed Forces). For context, regular serving personnel are given an initial 12 year contract on enlistment.   

AF 21.1. Entry clearance or permission to stay as a partner will be granted for whichever is shorter of:

(a) 5 years; or

(b) the remaining duration of the applicant’s partner’s enlistment;

So a partner who applies to enter the UK when the serving person has only one year left to serve will only have their visa granted for one year. This is the case even when the serving person is British.

This provision disproportionately affects Gurkhas who typically aren’t married on enlistment and tend not to bring a partner to the UK until they have served more than seven or eight years. 

Illogically once the serving person has discharged, a partner can then be granted the full five years. This is because under Appendix HM Armed Forces a veteran is still considered to be serving for two years post discharge, and as they don’t have an end of contract date paragraph AF21.1(b) no longer applies.   

In 2021, Army Families Federation reached an agreement with the Home Office to remove the provision in paragraph 21.1(b) above. The Home Office accepted that the paragraph was resulting in unintended consequences and was not the design of the rules. Unfortunately changes in personnel within the Armed Forces team since then has led to this issue being mothballed.  

The ‘simplification’ of the rules

According to the Home Office, the simplification process was an opportunity to separate the International Forces rules from the Home Forces rules, creating separate appendices for each. The International Forces are personnel from Commonwealth countries training in the UK or with UK forces, whereas the Home Forces are the British Army, Royal Navy, and Royal Air Force. As we now know the term ‘simplification’ couldn’t be more misleading.

Appendix HM Armed Forces contains very few of its own rules, instead relying on the rules in Appendix Continuous Residence, Appendix English Language, Appendix KOLL UK, Appendix Relationship with Partner, Appendix Children and part 9 of the immigration rules. 

In practical terms, then, navigating the rules for armed forces therefore requires you to have six other windows open in your browser. 

However, there have been a couple of welcome changes. One positive change, for example, is that the qualifying period of 60 months can now be met by including time spent on any other route to settlement. There is also now a route for step-children which had been missed out of Appendix Armed Forces and had caused quite a few problems for families. 

However there were and continue to be a number of drafting errors, omissions and inconsistencies. Some of these were quickly corrected in the Statement of Changes HC217. For example, the qualifying period of 60 months for settlement for partners in paragraph 27.1 of Appendix HM Armed Forces initially included children. The insertion of paragraph 27.3 by the statement of changes HC217 has now corrected this:

AF 27.3. If the applicant is a child, they can have completed a period of less than 60 months if their parent meets AF 27.1. and is being granted settlement under this Appendix at the same time.

We are still working through the remaining issues with the Armed Forces policy team. A few are outlined below:  

• Unlike paragraph 297 of part 8 of the immigration rules and the old Appendix Armed Forces, Appendix Children prevents children entering the UK for the first time with settlement if both parents are settled in the UK. Children are now required to already have held leave as a dependent in order to qualify for settlement on entry.
• There is a lack of recognition for qualifications undertaken in an education setting outside the UK for those children who were educated overseas as a result of their serving parents assignment (see paragraph 7.1 of Appendix English Language)
• In Appendix Continuous Residence, there is no specific provision to disregard absences of more than 180 days for partners of serving personnel who return to their home country during a serving persons deployment.

Grounds for refusal

One of the biggest challenges has been the incorporation of the part 9 general grounds for refusal into Appendix HM Armed Forces. Like Appendix FM, Appendix Armed Forces used to have its own suitability requirements with sentence-based thresholds. These allowed for limited leave within the rules to be granted in cases where the suitability requirements for indefinite leave to remain were not met. 

Specifically the rules allowed for serving personnel who had received a custodial sentence of more than 12 months to be granted permission for 30 months until a period of 15 years had passed. This rule was found in paragraph 8(c)(bb) of Appendix Armed Forces.

Under paragraph 2.1 of Appendix HM Armed Forces, the decision maker must now refer to part 9. Under part 9 there is no provision for limited leave to be granted as the rule does not differentiate between permission to stay and settlement; paragraph 9.4.1 simply says that an application for permission to stay must be refused.   

Confusingly, paragraph 7.2 of Appendix HM Armed Forces suggests that it is still possible to be granted permission to stay if the suitability requirements are not met: 

AF 7.2. If the decision maker is satisfied that the validity, suitability, and eligibility requirements for permission to stay, but not settlement, as an Armed Forces service leaver, are met, the applicant will be granted permission to stay.

We queried this with both the UKVI case working team and the Home Office Armed Forces policy team and received contradictory responses. The Home Office responded that permission would not be considered in a case of failing suitability requirements. The case working team on the other hand quoted paragraph 7.2 and confirmed that they can still consider granting permission. 

In a recent case, a soldier who was discharged following a 12 month sentence for fraud was granted permission to stay for 30 months outside the rules. The decision was even more surprising considering that Article 8 is not considered if a serving person does not meet the requirements under Appendix HM Armed Forces.    

What does the Army Families Federation do?

Army Families Federation is a charity which advocates on behalf of serving personnel and their families, where service life is leading to a disadvantage. We have a strong working relationship with the Home Office team who write the policy in this area and meet regularly to discuss amendments to the rules.