- BY Colin Yeo
The New Rules
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When I attempted to read Kafka’s The Castle I gave up halfway* through on the basis that the castle K strives to reach was a metaphor for the text of the book itself, which was impenetrable. I tried to tell myself afterwards that Kafka had not wanted me to reach the end, if there was one, and that abandonment was consistent with the author’s intent.
I only later learned he had never finished the book.
The same sense of forlorn despair returned as I first attempted to read Statement of Changes to the Immigration Rules HC 194, laid before Parliament on 13 June 2012 and mainly coming into effect today, 9 July 2012. Part 8 of the Immigration Rules on family immigration is essentially being abolished and replaced with new Appendix FM. In this new appendix, the time-honoured use of a sequence of numbers to structure a legal instrument, good enough for God at the time of the Ten Commandments, is now considered by the drafters to be way too old fashioned. Instead, an alphabet soup of non-sequential designations such as Section E-LTRP, Section D-BPILR and Section R-LTRPT are to be used.
The authors appear to have obtained PhDs in Illogicality from the University of Illogistan and then undertaken extensive vocational and professional training in the Art of Demented Bureaucracy. Either that or the UK Border Agency want to make immigration law so incomprehensible to the public, lawyers and even to UKBA staff that no-one will ever be admitted to this country ever again. An Englishman’s home is his Castle, I suppose.
In honour of this remarkable feat of drafting, surpassing even the Points Based System for incomprehensibility, I have decided to remodel the Ten Commandments in the style of Appendix FM:
YFM-H: Honour your father and mother.
LYG-IAM: I am the Lord your God who brought you out of slavery in Egypt.
SUN-YSRKH: You shall remember and keep the Sabbath day holy.
NOG-YSN: You shall have no other gods but me.
C-YSN: You shall not covet.
CA- YSN: You shall not commit adultery.
NLYGM-YSN: You shall not misuse the name of the Lord your God.
S-YSN: You shall not steal.
BFW-YSN: You shall not bear false witness against thy neighbour.
I may have messed up the order and even missed one, but that’s what happens when you abandon four thousand years of legislative drafting best practice on the basis that you can improve on The Almighty’s methods. Similarly, several major drafting errors are manifest in the new rules and UKBA has confirmed to ILPA (members only here) that they are indeed errors but will not be corrected for at least several months.
The substantive changes wrought by this tortured, tortuous instrument are probably the most significant to family immigration requirements since full blown immigration control was introduced in the late 1960s. No short piece can do justice to the scope of the amendments and training is being offered by HJT Training amongst others. The headline changes are as follows:
- Minimum sponsor income requirement of £18,600 to bring in a foreign spouse. The income must be proven in certain specified ways.
- Additional income requirements for any family with children starting at £3,800 [corrected] for the first child and a further £2,400 for each additional child
- Extension of the ‘probationary period’ for family settlement to all family migration routes and to a period of five years in all cases
- Abolition of immediate settlement for spouses living together outside the UK for four years or more
- Reform of adult dependent relative rules to require an applicant to require a high level of personal care by a UK resident as a result of age, illness or disability and to exclude uncles and aunts
- New route to residence where a child has been resident for seven years
- Abolition of 14 year long residence rule and replacement with a 20 year residence requirement
- Those who overstay for more than 28 days will be ineligible to apply under the rules (from 9 July for family members, from 1 October for other categories)
- New rules on criminality and settlement and on deportation
The new rules, in combination with the preceding Statement of Intent and a motion passed in the House of Commons on 19 June 2012 following a debate (of sorts), purport to define the scope of Article 8 of the European Convention on Human Rights and the best interests of children. The Government’s position is that the new immigration rules should now define the balance to be struck in all Article 8 cases and that the rules can be challenged in court, but the effect in individual cases cannot be.
I will confine myself for now to stating that this is a surprising proposition and it is unlikely to be long before the matter is ventilated in the higher courts. More detailed examination of the individual changes will follow if or when time allows.
*OK, it might have been a bit sooner than that
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38 responses
That Ten commandment is hillarious just as Teresa May’s drafters are laughable!
it’s £3,800 for the first child
As ever, witty and insightful! Separately, and I AM NOT MAKING THIS UP (in the words of a certain somebody), the 1st October is also the deadline for anybody wishing to apply for a scholarship to study at the lucrative University of Illogistan!
Do the new rules (9/July/2012) affect spouses of EEA citizens who wish to apply for a Residence Card? For example, a south american wife of an Italian citizen who would like to apply for a Residence Card after 9/July/2012?
No they don’t, and there’s nothing the government can do to change the European rules.
Thanks for this. It made me feel much better about having real trouble understanding appendix FM. Although I’ve never tried to read the castle, it gave me the same sinking feeling I had the time I tried to read Finnegan’s Wake…
Anyone knew have the link to where the new policy guidance or forms is? I mean Teresa MayGATE 9th July ones?
Cheers
“Either that or the UK Border Agency want to make immigration law so incomprehensible to the public, lawyers and even to UKBA staff that no-one will ever be admitted to this country ever again.”
I’ve been thinking the very same for a long time. The government seem intent on meeting the “reducing immigration” target by just putting people off coming here.
Can anyone confirm or correct me. My reading today of appendix FM relating to spouses of settled people is that the additional income only relates to the children of the applicant, not to pre existing children of settled sponsor. It also only relates to children that are not British citizens. See ECP3.2. “In this paragraph “child” means a dependent child of the applicant who is-
(a) under the age of 18 years, or who was under the age of 18 years when they were first granted entry under this route;
(b) applying for entry clearance as a dependant of the applicant, or has limited leave to enter or remain in the UK;
(c) not a British Citizen or settled in the UK; and
(d) not an EEA national with a right to be admitted under the Immigration (EEA) Regulations 2006.”
Hope I am right. Probably just another cock up by the legislators.
“CA- YSN: You shall not commit adultery.”
What about E-CA-YSN (exceptions)?
PIA-CA (Particular immigration action where non-British child born out of adulterous relationship to parents without leave.)
F-HR-NA: Non-application of human rights to those in possession of felines.
etc.
Seriously, I had only read the statement of intent, but have today read through parts of the new IDI Chapter 8 Appendix FM. It is indeed confusing, you’d have to print out all documents and continuously cross-reference this funny system. It seems to be as complicated as it possibly could be. Almost funny except that the new rules are going to hurt a lot of genuine innocent victims because the government wants to pander to tabloids, uninformed opinion and would-be BNP voters.
I know how you feel FM, it reminded me of one of your skeleton arguments, thank god I had some paracetamol to hand!
I am told that the changes kick in as of the date of application. Given that the whole document is littered with caveats (including some old friends such as ‘truly exceptional’ and ‘insurmountable obstacles’) I can see certain IJ’s (rightly or wrongly) still allowing appeals. What will be far more interesting will be when the first IJ sticks their kneck out and avers the whole change is unlawful etc.
I do worry about consistency of application amongst caseworkers, in that trainers (current or former SPO’s none of whom were asked for input before these changes were announced) are themselves bemused by the entire document.
PO
Reading Annex FM, this scene from Monty Python’s “Meaning of Life” keeps running through my head:
Teacher (John Cleese): “All right, settle down. Settle down. Now, before I begin the lesson, will those of you who are playing in the match this afternoon move your clothes down onto the lower peg immediately after lunch, before you write your letter home, if you’re not getting your hair cut, unless you’ve got a younger brother who is going out this weekend as the guest of another boy, in which case, collect his note before lunch, put it in your letter after you’ve had your hair cut, and make sure he moves your clothes down onto the lower peg for you. Now…”
We are as bemused by the drafting as you are. The PBS rules and associated appendices are bad enough, but this really does give the impression of having been published about 10 drafts too early.
I have asked the policy people why they did not take the opportunity with these big changes to redraft the whole of the rules and start again?Apparently they were hoping to do just that, but then a minister announce that changes would happen in July, and their timescale was
cut short by about 3 months!
Simplification of the rules is supposedly still on the cards, though I expect it to remain on the backburner for the next couple of years while we deal with the fallout of this challenge to the judiciary and have to respond to what they make of it.
I think the priniciple espoused in the statment of intent, that the courts should confine themselves to the proportionality of the rules, has some logic to it. I am fascinated as to how it will work itself out in practice though.
We seem to be inviting test cases on each specific point. I assume if any point is said to be disproportionate and our avenues of appeal are exhausted, then we will swiftly and cheerfully change those rules (probably with the same rapidity that we manage to change the EEA regulations when the courts strike parts of them down). But until those test cases are heard, what is to stop any Tribunal judge saying ‘I don’t think the rule is proportionate, and therefore decline to apply it’?
I guess it will keep us all busy anyway.
James, you are indeed correct. If the Old Woman who lives in a Shoe were to re-marry and her new husband had an existing child, and she wished for these newcomers to her household to settle in the UK, her own children’s needs would not be considered or included in any assessment of the families maintenance. Absurd but true!
As previously requested by Ange…anyone found the Guidance yet? I am having trouble chalkenging something I cannot find on Pankina grounds.
It’s here
Thanks.
The scales have fallen from my eyes.
The supposedly binding definitions of “specified” are in the IDI’s. Haven’t we seen this somewhere before?
Also, lots of references to date of application being the relevant date for financial requirements. Again such references are not in the rules. Looking forward to all the “just got a new job” and the “look at my bank balance” confusion.
Finally got around to reading them, and after about 10 minutes realised I had no choice but to sign up for next week’s training, so that’s someone else making a few quid out of all this!
I’m just about getting my head around FM, but I am having trouble finding where the appendix section EX.1 is referred to in the rules or elsewhere in FM. I’ll assume it is in with 276ADE for now.
Now time to see how they have screwed with the application forms…!
R-LTRP(c) and (d) (under “Family life as a partner”) and R-LTRPT (c) and (d) (“Family life as a parent”) refer to EX.1 for leave to remain.
A section on “Evidential flexibility” in IDI Chapter 8 (Appendix FM FInancial requirement 1.7, paragraph 5.2).
@FM
Thanks for the link
@James
I agreed with you. Very confused about your concern too.
@ All
The guidance do NOT deal with all circumstances
I have a situation at hand where the 2 parents need to apply for thir daughter to join them from Africa. One of the Parent have ILR, the other one has PBS dependant visa to last next year but about to apply for ILR. Now will the maintenace be only £3800.
I’m losing the will to live.
What’s not made clear – and that even the politicians don’t understand – is that non-EU parents of British citizens actually will NOT be able to settle here at all, because no one will be able to satisfy the stringent criteria set out.
What’s bizarre is that other countries known for having strict immigration – Australia, Canada, USA ALL allow parents of citizens to join their children, regardless of age or health, subject to a minimum income criteria and in some cases, a bond held against risk of welfare benefits being sought.
Simple route – have a requirement for the sponsor to show they can look after their parents – via income, savings, property etc. – anything to show the parent/s will not be a burden on tax payers – and make more stringent the benefits systems whereby those who have moved to the country in the previous X years do not qualify for benefits – be they EU or non-EU citizens!! Why make it so it just closes off the route completely?
So EX.1. is contained in the IDIs? It’s like a treasure map! EX marks the spot!
Ex.1 itself is in Appendix FM here: http://www.ukba.homeoffice.gov.uk/policyandlaw/immigrationlaw/immigrationrules/app-family-members/exception/
Half the categories sound like raspberries if you say them out loud. LTRPTHRPLTHRRP…
This is my favourite ever comment on the blog. And I think it always will be. Thank you, you have made it all a little bit easier to bear!
OK, so the VAF4A Appendix 2 form (Financial requirements) refers to “policy guidance notes which can be found on the UKBA website”. Without these notes your average applicant (or rep) has no chance of translating things like “category F” income.
I’m struggling: do they mean the IDIs (which do refer to the categories but are hardly user friendly for non-represented applicants)? Or am I missing some new notes on the normal applicants’ part of the website? (what with my eyes being screwed shut to keep out the horrible drafting)
All true – they’re gobbledygook, but…EX.1. is the rub. If you meet this requirement, it’s ZH(Tanzania) and Ruiz Zambrano lite (i.e. minus Dereci, as the BC settled parent can be on the scene). EX.1. means no requirements to meet but for ‘suitability’ – no financial or English language requirements, no sole responsibility or exercising access. Just ‘a genuine parental relationship’. Relish the good bits (R-TGB) And see you at the HJT training (T-HJT) on it all! L-OL.
Thank you KF!
It is impossible to logically find anything.
The rules are cryptic but they are probably easier to read some of the Gook coming out of the Court of Appeal, Admin Court and the Tribunal which will become even more fun to read! Of course the international courts are even worse. It’s not as one sided as some comments indicate: there are literally tens of thousands of people here who are terrible (perhaps not even) parents and are already lining up to claim a visa through “their children” (who have been neglected for “7 years”). I’m totally confused about who I should dislike more, them or the UKBA??? Any ideas?
@Everyone
Who qualifies for indefinite leave to enter? Cheers
Well, the HJT training was worth it’s weight in gold…not least of all the book that was handed out, so thanks all.
I have a quandry about bereaved partners. I have a situation where the applicant has been widowed following the death of his wife from cancer and is looking after their baby. He can’t work, as he is looking after the baby, and because he will now not get ILR he won’t be entitled to any public funds once the application is made. So they are about to be made homeless. Is this something the UKBA thought about when changing this rule, as I am pretty sure my guy can’t be the only one in this situation.
I think I’m going to scream. So where does this leave the rule changes now? It seems increasingly the case that the UKBA make new rules without giving a moments thought as to whether or not those changes are legal.
Thanks!
ha ha ha, I love the 10 Commandments. you are right, these changes dont make sense, sadly we have to explain to the innocent clients what they mean! God help us!