Saracens Blog

Immigration Rules and Family Life – the New British Way | Immigration

The UK Coalition Government, persistent in its unreachable attempt to reduce the number of “net migrants” to tens of thousands, has now published the outcome of its Family Consultation on Immigration in the form of changes in the Immigration Rules. The way in which the measures have been leaked piecemeal to prepare the public and the speed with which these have now been published and are being brought into force, could by itself serve as a fantastic case study on right-wing mob-inspired politics by stealth and fear. What’s more, the changes in the Immigration Rules on family migrants are clearly discriminatory in their impact – by far the most people affected by the upcoming changes in the Immigration Rules will be family migrants and their family members from the UK’s Asian community. On the one hand, the Asian community in the UK is one of the largest source of family migrants coming into the UK. On the other hand, as the last census results clearly indicated, the Asians in the UK have higher than average levels of people on low income, unemployed or economically inactive. It then becomes clear that it is the Asian community that is the primary target of the latest changes in the Immigration Rules. So, potentially, judicial challenges are on the cards – although whether such challenges are going to be a success cannot be a foregone conclusion.

So, what are the changes in Immigration Rules for family migrants? In summary, it is all primarily about money, relationship and human rights. Yes, human rights. The Secretary of State has decided that the courts have had far too much freedom in applying the human rights in immigration cases and therefore she will now hand down dictats setting out the approach to be taken by the courts. This way of doing things is unlikely to succeed in the long run, but will no doubt have an adverse initial impact on a lot of border-line cases involving family migrants where the rights to family and private life do play a role.

The key changes in the Immigration Rules are:

  •  A minimum income threshold of £18,600 for those who wish to sponsor the settlement of a spouse or partner in the UK. A higher threshold will be required for the additional sponsorship of migrant children under the age of 18: £22,400 for one child and an additional £2,400 for each further child sponsored before the migrant parent reaches settlement. Savings above £16,000 will be taken into account but in certain cases savings in excess of £90,000 may be required.
  • For entry clearance purposes, only the income of the UK partner is taken into account.
  • Increasing the minimum probationary period from two years to five years before non-EEA spouses and partners can apply for settlement.
  • Abolishing immediate settlement for migrant spouses and partners where the couple have been living together overseas for at least four years. They will need to complete a five-year probationary period in the UK for settlement. What’s more, the income requirement will still apply! Thus, if you are moving from abroad back home and want to bring your non-EEA wife and kids with you – you will need to have a job or a “firm verifiable” job offer in place with the relevant level of income before you even consider applying for a visa for your spouse and kids.
  • Adult dependent relatives will only be able to apply to settle in the UK from overseas and will be required 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 here and without recourse to public funds. The actual requirements under this paragraph will mean that almost no one, save in the most tragic of cases will be able to apply under this category. “Long-term personal care” is defined by the Home Office as needing “help performing everyday tasks, e.g. washing, dressing and cooking”. Furthermore, the applicant would need to prove that the UK relative could not afford for the care to be provided back in the home country. “Draconian”, is the word that comes to mind.
  • Only in exceptional circumstances will the public interest in the deportation of foreign criminals sentenced to at least four years be outweighed by other factors. Those with lesser sentences will normally be deported, unless they have a child and it is not reasonable for that child to leave the UK with the parent, or the child cannot be cared for by other family members in the UK, or they have been in the UK lawfully for at least 15 years and there are insurmountable obstacles to continuing family life with their partner overseas.
  • From October 2013, all applicants for settlement will be required to pass the Life in the UK test and present an English language speaking and listening qualification at B1 level or above, unless they are exempt.
  • The Crime and Courts Bill was published on 11 May 2012 and included provision to remove the full right of appeal for family visit visas. In the interim regulations will be laid before Parliament shortly to remove the full right of appeal from those applying to visit their cousin, uncle, aunt, niece or nephew, or a relative who does not have settled, refugee or humanitarian protection status. The right of appeal for immediate family members will be removed within 2 years.
  • The current rule allowing a person here unlawfully to qualify for settlement after 14 years will be abolished. A person will generally have to be in the UK for a minimum of 20 years before they can apply to remain here, on a 10-year route to settlement from that point, on the basis of the Article 8 right to respect for private life. So all in all 30 years to reach permanent settlement – a lifetime.

The changes in the Immigration Rules are due to come into force on 9 July 2012. It is currently the legal position that a person who has been granted or has applied for leave as a family migrant before 9 July 2012 will remain subject to the rules in force prior to that date and it is unlikely that this will change.

Overall, it is clear that upcoming changes in the Immigration Rules are designed to severely reduce the amount of family migrants who can enter the UK. And with the appeal rights slowly being whittled away, it becomes more important than ever to ensure that visa applications, whether in the UK or from abroad, are prepared to the highest standard so that they can succeed on the first attempt.

Igor Ryabchuk

Head of Immigration

Saracens Solicitors

 

photo credit: Terminal5Insider


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