Changes to Immigration Rules for family members

Standard Note: Last updated: Author: Section SN/HA/6353 22 August 2012 Melanie Gower Home Affairs Section

The Immigration Rules for non-EEA nationals seeking permission to stay in the UK as a family member of a British citizen or person settled here have changed. The changes mostly affect persons making new applications on or after 9 July 2012. The changes affecting spouse/partner/fiancé(e) visa applications are particularly significant. British/settled persons wishing to sponsor their non-EEA national partner to join them in the UK must now demonstrate a minimum gross annual income of £18,600 (more if dependent children are also being sponsored). There are various permitted ways to satisfy the requirement, such as through evidence of employment and non-employment income and/or cash savings. However, the foreign spouse’s overseas employment income cannot be taken into account. Sponsors in receipt of certain disability benefits and HM Forces personnel are currently exempt from the new financial requirement, although these exceptions will be reviewed. In addition, foreign spouses/partners now have to wait longer before they become eligible to apply for permanent settlement in the UK (for five years rather than two), and there is a new approach to assessing the ‘genuineness’ of the relationship. There is no minimum income requirement for sponsoring adult or elderly dependent relatives who wish to settle in the UK. However narrower eligibility criteria have been introduced for these visas - only close relatives with a need for long-term personal care, which can only be provided by the relative in the UK, are now eligible. Furthermore, from October 2013, persons applying to stay permanently in the UK will have to demonstrate intermediate English language skills and pass the ‘Life in the UK’ test. The Government considers that the previous rules for family members were vulnerable to abuse, didn’t encourage migrants to integrate, and placed a burden on UK taxpayers. It has also referred to its desire to reduce net migration levels as a reason for changing them. Critics argue that the changes will exacerbate migrants’ difficulties in integrating, and that the financial requirement for spouse/partner applications will have a disproportionate impact on certain groups of sponsors, such as women, ethnic minorities and low-earners. The changes to the Immigration Rules which affect applications for permission to stay in the UK on the basis of an applicant’s qualified right to respect for private and family life are discussed in standard note SN06355 Article 8 of the ECHR and immigration cases. Furthermore, family visitor visa applicants’ appeal rights have been restricted. This is discussed in Library standard note SN06363 Immigration: Family visitor visa appeal rights.

Contents
1  Announcement of changes in the Immigration Rules 1.1  The rationale for the changes 1.2  Additional policy background material 2  In brief: The new rules for spouses and partners 2.1  A five year route to permanent settlement 2.2  A new financial (minimum income) requirement 2.3  A ‘genuine and subsisting’ relationship 3  4  In brief: Changes affecting adult dependent relative applications In brief: Changes affecting other types of family application 4.1  Settlement and English language 4.2  Family members of refugees and persons with humanitarian protection 4.3  Dependents of points-based system migrants 4.4  Article 8-based claims 4.5  Abolition of family visitor visa appeal rights 5  6  7  Transitional arrangements for persons who applied before 9 July Home Office impact assessment Responses to the changes 7.1  In Parliament 7.2  NGOs, think-tanks and campaigning organisations 8  Handling enquiries from constituents about the new rules 2  3  4  4  4  5  9  10  10  10  11  11  11  12  12  12  13  13  14  16 

1

Announcement of changes in the Immigration Rules

The UK Border Agency (UKBA) publicly consulted on changes to family migration routes between July - October 2011. 1 Library standard note SN06216 Immigration: reforms to family migration routes summarises the background to the consultation, related research, and the Government’s initial proposals. The Home Secretary announced the outcome of the consultation on 11 June 2012. 2 She confirmed that the Government would change the Immigration Rules for non-EEA nationals applying for leave to enter or remain in the UK under family immigration categories (e.g. as a spouse, fiancé(e), unmarried partner or dependent relative of a British citizen or person

1 2

UKBA, HFamily Migration: A consultationH, July 2011 HHC Deb 11 June 2012 c48-63

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settled in the UK). 3 A UKBA news update of 13 June summarised some of the main changes which affect family members of British/settled persons wishing to visit or settle in the UK. 4 The Statements of Changes in the Immigration Rules HC 194 and Cm 8423 contain the relevant changes. 5 Most of the changes apply to new applications made on or after 9 July 2012. The rules for family members of British/settled persons wishing to join them in the UK are now spread between Part 8, Appendix FM and Appendix FM-SE of the Immigration Rules. Paragraphs A277 - A279 specify the interaction between Part 8 and Appendix FM, and the transitional provisions for those applicants who remain eligible to apply under the pre-9 July version of the Rules. 1.1 The rationale for the changes

The Home Office’s Impact Assessment for the new rules cites Government concerns about abuses of the family migration routes, present levels of net migration and the effects on UK taxpayers, and migrant family members’ integration, as reasons for the changes:
The family immigration system must be fair, clear and consistent, both to applicants and to the settled population. It should also be fair also to local communities and to the UK taxpayer. (...) British citizens and those settled in the UK can enter into a genuine relationship with whomever they choose, but if they also choose to establish their family life in the UK, they must do so on a basis that does not constitute a burden on the taxpayer and that ensures the migrant is able to integrate in British society. (...) The Government believes that family migrants and their sponsors must have sufficient financial independence not only to be able to support themselves without recourse to the State, but also that they should have the wherewithal to allow the migrant to participate in everyday life in a way that enables them to integrate and play a full part in British society. This requires a level of income higher than the current maintenance requirement, which is equivalent to the level of income support, is inadequate to prevent migrants and sponsors becoming a burden on the welfare system and in turn inhibits proper integration. The new minimum income threshold needs to be simple and consistent and must be met without the sponsor seeking or needing help from the taxpayer. Migrants should achieve settlement in the UK and the benefits that come with it by demonstrating the genuineness of the relationship on the basis of which permanent residence in the UK is sought, and by demonstrating an appropriate level of English language and knowledge of British values. The ability to speak and understand the English language is essential to be able to live effectively in the UK on a permanent basis. Research by Shields and Wheatley-Price into the benefits of learning English found that fluency in English increased the average hourly occupational wage by approximately 20 per cent. If migrants cannot speak English, this can create significant costs for the taxpayer. In 2009-10, DWP alone

3 4 5

HHC 395 of 1993-4 as amended UKBA update, ‘HFamily migration changes announced - updated’H, 13 June 2012 The further Statement of Changes Cm 8423 was necessary in order to comply with the Supreme Court decision in the case of R (on the application of Alvi) (Respondent) v Secretary of State for the Home Department (Appellant) [2012] UKSC 33.

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spent £2.6 million on telephone interpreting services and nearly £400,000 on document translation. 6

1.2

Additional policy background material

The following documents, which were published in the days following the Home Secretary’s statement, contain further information about the new immigration requirements: • Home Office Family Migration: Response to the public consultation. Annex A contains a table which summarises each of the proposals made in the summer 2011 consultation alongside its outcome. Home Office Statement of Intent: Family migration. Appendix D contains a table which summarises the effect of the Immigration Rule changes by immigration category. Home Office Impact Assessment Home Office Policy Equality Statement

• •


Home Office Statement of grounds of compatibility with Article 8 of the European Convention on Human Rights
UKBA guidance to caseworkers assessing applications under the new rules: the ‘Settlement’ section of the Entry Clearance Instructions contains guidance relevant to visa applications made overseas; the Immigration Directorate Instructions contains similar advice on handling applications made in the UK (‘Chapter 8 Appendix FM (family members)’ deals with the rules for applications made on or after 9 July 2012; ‘Chapter 8 family members transitional arrangements’ applies to applications made before then).

The relevant general information pages in the ‘visas and immigration’ section on the UKBA website have also been updated to reflect the new rules.

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2.1

In brief: The new rules for spouses and partners
A five year route to permanent settlement

Persons applying for leave to enter/remain in the UK as a spouse, civil partner or unmarried partner of a British citizen or person settled in the UK will be given temporary permission to stay in the UK for two and a half years initially (with no recourse to public funds). 7 They will then have to renew this for another two and a half years. At the end of the second period of temporary leave, if the relationship is still subsisting and subject to other eligibility criteria, they will become eligible to apply for permanent settlement (‘Indefinite Leave to Remain’). The pre- 9 July version of the Immigration Rules allowed for spouses/partners to apply for permanent settlement after completion of a single two year ‘probationary period’ with no recourse to public funds. Under the new rules, bereaved spouses and victims of domestic violence will be eligible to apply for permanent settlement whilst they have temporary leave to remain (as they also were under the old rules).
6 7

Home Office, HImpact Assessment IA No. HO0065 Changes to family migration rulesH, 12 June 2012, p.9-10 Fiancé(e)s are given six months’ leave but can then ‘switch’ into the spouse/partner route.

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It is no longer possible for a non-EEA national spouse to immediately apply for permanent settlement in the UK on the grounds that they have been living overseas with their British/settled sponsor in a marriage/partnership for 4 years or more. Instead, they must also complete a five year probationary period in the UK. The Government considers that it is unfair that migrant partners who may have never been to the UK or made any tax or National Insurance contributions should be given immediate settlement and access to welfare benefits. 2,055 of these settlement visas were granted in 2010. 8 2.2 A new financial (minimum income) requirement

British citizens and settled persons wishing to sponsor a non-EEA national fiancé(e), proposed civil partner, spouse, civil partner, or unmarried or same-sex partner’s application will have to meet a new financial requirement (demonstrating a minimum gross annual income of £18,600 or equivalent), and provide evidence of adequate accommodation in the UK. The level of the financial requirement will be reviewed annually. It is higher if dependent children are also being sponsored (discussed further below). The previous version of the rules required the UK-based sponsor to show that their net income after deduction of housing costs was not less than the equivalent amount they would receive in Income Support. The Government’s Migration Advisory Committee assessed that in effect, this required a post-tax income of £5,500 per year excluding housing costs (although no amount was specified in the Immigration Rules). 9 The UKBA’s Immigration Directorate Instructions briefly summarise the rationale for the new financial requirement:
The new financial requirement reflects the level of income at which a couple, taking account of the number of children they have, generally cease to be able to access income-related benefits. This means that financially they can support themselves and the migrant’s integration without becoming a burden on the taxpayer. It is recognised that £18,600 (or the higher level for children) is not a determinant of a couple’s eligibility for income-related benefits in every case. There is no single number which can provide this, but a single threshold provides clarity and simplicity, consistent with a fair, transparent and predictable immigration system. The purpose is not to draw up a personal financial balance sheet for each couple (outgoings, credit card and other debts, mortgage, etc), but to take £18,600 (or the higher level for children) as a benchmark for financial stability and independence on the part of the partner or the couple. Circumstances may change over time, so they will be reassessed when the applicant applies for further leave to remain and for indefinite leave to remain. 10

As indicated above, the financial requirement must be satisfied at each application stage until the foreign spouse is granted Indefinite Leave to Remain. The financial requirement can be met by relying on income from employment, non-employment and pension income, and/or cash savings:

8 9

10

Home Office, HStatement of Intent: Family migrationH, para 110 MAC, HReview of the minimum income for sponsorship under the family migration routeH, November 2011, paras 2.26 - 2.30; 5.15 UKBA, Immigration Directorate Instructions, HChapter 8 Appendix FM (Family members),H Annex FM section FM 1.7 (accessed on 22August 2012), p.3

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The applicant will be able to meet the financial requirement for entry clearance, leave to remain, further leave to remain and indefinite leave to remain through one or more of the following sources: • Income from employment or self-employment of the partner and/or the applicant if or once they are in the UK with permission to work. (This means that the applicant’s earnings from employment or self-employment are excluded at the entry clearance stage. There is also scope for the applicant’s partner, if they have been working overseas, to count the income from a confirmed job offer in the UK). • Specified non-employment income of the applicant’s partner and/or the applicant. • State (UK or foreign) or private pension of the applicant’s partner and/or the applicant • Any Maternity Allowance and bereavement benefits received in the UK by the applicant’s partner and/or the applicant. • Cash savings of the applicant’s partner and/or the applicant, above £16,000, held by the partner and/or the applicant for at least 6 months and under their control. • Income and cash savings of a dependent child of the applicant once the child has turned 18 years of age. 11

Each of these options are discussed in greater detail in the UKBA’s guidance to caseworkers: Immigration Directorate Instructions, Chapter 8 Appendix FM (family members), Annex FM section FM 1.7, which also clarifies the following matters: • There is no flexibility over the level of the financial requirement: a minimum gross annual income of £18,600 (higher where a child is also being sponsored) is the threshold to be met in all cases. Only documents specified in the Immigration Rules and related UKBA guidance can be accepted as evidence that the financial requirement is met. Promises of support from third parties will not be accepted. Income from loans and credit facilities, income-related benefits and certain contributory benefits and tax credits will not be counted. The migrant applicant’s previous, current or prospective employment and earnings, or any job offer in the UK, will not be taken into account if they are applying for a spouse/partner visa from overseas. Their earnings can be taken into account once they are in the UK with permission to work. If the sponsor is in the UK and relying on their employment income, they must be in employment at the point of application (with a gross annual salary which meets the financial requirement alone or in combination with other permitted sources) and either: o have been so continuously for the previous six months or

• • • •

11

UKBA, Immigration Directorate Instructions, HChapter 8 Appendix FM (Family members),H Annex FM section FM 1.7 (accessed on 22August 2012), p.6-7

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o

if employed for less than six months, have received over the previous 12 months the level of income required through gross salaried income and/or other permitted sources.

If the sponsor has been working overseas and is returning to the UK with the applicant, they must have a verifiable job offer or signed contract of employment to start work within three months of their return (with an annual salary which is sufficient to meet the financial requirement on its own or in conjunction with other permitted sources). They must also either: o be in employment overseas at the point of application (with a gross annual salary which meets the financial requirement alone or in combination with other permitted sources) and have been so continuously for at least the previous six months; or have received the level of income required over the previous 12 months through gross salaried income and/or other permitted sources.

o •

Cash savings above £16,000, held by the sponsor, the applicant or jointly for at least six months and under their control, can be counted towards the income threshold, using a formula against any shortfall amount. The source(s) of the cash savings may be a gift from a third party but must not be a loan. Cash savings above £16,000 can be counted against a shortfall against the income threshold, on a basis that either multiplies the amount of the shortfall by 2.5 (equivalent to the length of temporary leave being applied for) or, an amount equal to the shortfall amount (for applications at indefinite leave stage). The UKBA guidance provides the following example:
For example, where the applicant’s partner and applicant have no income which may be counted towards the financial requirement, £62,500 in cash savings will be required for the financial requirement to be met at the entry clearance/leave to remain stage or at the further leave stage, i.e. the ‘floor’ amount of £16,000, plus 2.5 times the shortfall of £18,600. At the indefinite leave to remain stage, the same couple will require £34,600 in cash savings to meet the financial requirement by that means alone, i.e. the ‘floor’ amount of £16,000, plus the shortfall of £18,600. The level of savings required to meet the shortfall income must be based on the level of employment-related and/or other income at the date of application. The following table sets out some examples where £18,600 is the level of income threshold which applies: 12 Income (£): Leave to enter/remain: Savings required Further leave to enter/remain: savings required £62,500 (16k+ (18,600 x 2.5)) Indefinite leave to enter/remain: savings required £34,600 (16k+ 18,600)

No income

£62,500 (16k+ (18,600 x 2.5))

12

UKBA, HImmigration Directorate Instructions, Chapter 8 Appendix FM (Family members),H Annex FM section FM 1.7

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Income £15,000 Income £18,000

of

£25,000 (16k+ (3,600 x 2.5))

£25,000 (16k+ (3,600 x 2.5)) £17,500 (16k+ (600 x 2.5))

£19,600 (16k+ 3,600) £16,600 (16k+ 600)

of

£17,500 (16k+ (600 x 2.5))

A higher income if dependent children are included A higher financial requirement applies if an application includes dependent children. An additional gross annual income of £3,800 will apply for the first child sponsored and an additional £2,400 for each additional child. For example, an application for a non-EEA national spouse and their two dependent children will require a minimum gross annual income of £24,800. If the requirement is not met, all of the applicants will be refused leave to enter/remain. The higher income requirement for sponsoring a child is intended to reflect “the education and other costs arising in such cases”. 13 It applies at each application stage until the migrant partner is granted permanent settlement, even if the dependent child turns 18 before this time (unless they have been granted an immigration status in their own right). 14 The requirement applies to biological children, step-children (in certain circumstances), adopted children (in certain circumstances), and children coming for the purpose of adoption who are subject to immigration control and applying for limited leave to enter or remain under Appendix FM or the relevant paragraphs of Part 8 of the Immigration Rules. The financial requirement does not apply in respect of applications from a child who: • • Is a British citizen (including an adopted child who acquires British citizenship); Is an EEA national (except where a non-EEA spouse or partner is being accompanied or joined by the EEA child of a former relationship who does not have a right to be admitted to the UK under the Immigration (EEA) Regulations 2006); Is settled in the UK or who qualifies for indefinite leave to enter; or Qualifies in a category under Part 8 of the Immigration Rules to which the requirement does not apply.

• •

Applicants who are exempt from the new financial requirement If the UK-based sponsor is in receipt of Disability Living Allowance, Severe Disablement Allowance, Industrial Injuries Disablement Benefit, Attendance Allowance, or Carer’s Allowance, the new financial requirement does not apply. Instead, the maintenance requirements set out in the previous version of the Immigration Rules must be satisfied namely, that sponsors are able to adequately maintain the applicant without additional recourse to public funds or relying on a promise of third party support. 15 However, if the
13

14

15

UKBA, Immigration Directorate Instructions, HChapter 8 Appendix FM (Family members)H, Annex FM section FM 1.7 If the higher minimum income requirement continues to apply in respect of a child over 18, their income and savings can be counted towards the requirement. See UKBA, Immigration Directorate Instructions, HChapter 8 Appendix FM (Family members)H, Annex FM section FM 1.7A

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sponsor’s circumstances change, the minimum income requirement will apply in subsequent applications (i.e. for further or indefinite leave). The Government intends to review the arrangements for applications sponsored by disabled people and carers before April 2013. It has stated that applicants who are currently exempt from the requirement cannot expect that this will necessarily remain the case after April 2013. 16 In addition, the previous maintenance rules will also continue to apply “for the time being” for cases involving serving UK and foreign and Commonwealth armed forces personnel. 17 2.3 A ‘genuine and subsisting’ relationship

The Immigration Rules now require that applicants demonstrate that the relationship is ‘genuine and subsisting’. 18 This is part of longstanding efforts to deal with the problems of ‘sham’ and forced marriages. The Immigration Rules do not specify what supporting evidence must be provided, although the UKBA has published guidance to its caseworkers on how to assess the ‘genuineness’ of a relationship. 19 This sets out a range of factors which may be associated with genuine and non-genuine relationships. Some of the factors which may suggest a genuine and subsisting relationship include: evidence that the couple are in a current, long-term relationship; evidence that the couple share financial responsibilities; and evidence that the couple have made definite plans concerning the practicalities of living together in the UK. Factors which may indicate that a relationship is not genuine and subsisting include a statement from either party that the marriage is a sham or that they have been forced into marriage; the circumstances of the marriage ceremony (such as no or few guests); if the couple are unable to provide accurate personal details about each other; and if the applicant has previously been refused leave to remain in a different immigration category. Identifying factors which may indicate a non-genuine relationship in the course of assessing an application may lead to ‘additional enquiries’. However, such applications will not necessarily be refused caseworkers have discretion to grant or refuse an application based on their overall assessment of the case. The July 2011 consultation paper on Family migration raised a number of other proposals for preventing ‘sham’ and forced marriages. The Government’s response to the public consultation indicates that many of these remain under consideration, including • Combining some of the roles of registration officers in England and Wales and the UKBA Requiring more documentation from foreign nationals wishing to marry in England and Wales to establish their entitlement to do so. Targeted use of interviewing and home visits in both family route and EEA cases Restrictions on persons sponsored as a spouse or partner sponsoring another spouse or partner within 5 years of being granted settlement in the UK.



16

17 18 19

UKBA, Immigration Directorate Instructions, Chapter 8 Appendix FM (Family members) Annex FM section FM 1.7 HHC Deb 11 June 2012 c60 Immigration Rules (HC 395 of 1993-4 as amended), HAnnex FM section E-ECP 2.H6 UKBA, Immigration Directorates Instructions, HChapter 8 Appendix FM (Family members), section 2.0

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Banning someone found to be abusing the process or convicted of bigamy or an offence associated with sham marriage from acting as a sponsor for up to 10 years. Banning someone convicted of domestic violence or who has breached or been named the respondent in a Forced Marriage Protection Order from acting as any form of immigration sponsor for up to 10 years. 20

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In brief: Changes affecting adult dependent relative applications

The adult dependent relative visa category enables relatives of British citizens or settled persons to come to live in the UK. 21 Successful applicants are granted permanent settlement immediately. Previously, parents or grandparents aged 65 or over were eligible if they were wholly or mainly dependent on the UK-based family member for money, did not have other close relatives in their country who could support them, and could be adequately maintained in the UK without recourse to public funds and housed in accommodation owned or occupied by the UK-based sponsor. Other adult relatives (parents and grandparents under 65, and children, siblings and uncles and aunts) could also apply if they met those eligibility criteria and there were ‘exceptional compassionate circumstances’. New applications submitted on or after 9 July are subject to stricter eligibility criteria. Firstly, uncles and aunts of UK-based sponsors, and applicants with unspent convictions in the UK or overseas are no longer eligible for this type of visa. Furthermore, relatives must demonstrate that they require a level of long-term personal care as a result of age, illness or disability, which can only be provided by their relative in the UK and without recourse to public funds. “Long-term personal care” is regarded as help to perform everyday tasks such as washing, dressing and cooking. If the applicant is able to obtain the required level of care in their own country with practical and financial help from the UK-based sponsor, they will not be eligible for a visa. In addition, the UK-based sponsor must sign an undertaking confirming that the applicant will not have recourse to public funds, and that the sponsor will be responsible for their maintenance, accommodation and care (without recourse to public funds) for the first five years that they are in the UK.

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4.1

In brief: Changes affecting other types of family application
Settlement and English language

Persons applying for Indefinite Leave to Remain are already required to demonstrate knowledge of language and life in the UK, by either passing the ‘Life in the UK test’ or passing an English for Speakers of Other Languages course which contains citizenship materials. 22 From October 2013, all applicants will be required to demonstrate knowledge of language and life in the UK by passing the ‘Life in the UK test’ and achieving intermediate speaking

20 21 22

Home Office, HFamily migration: Response to consultationH, Annex A Similar provisions apply for relatives of persons with refugee leave or humanitarian protection English speakers, those with intermediate language skills, and certain categories of skilled worker must take the Life in the UK test. Other persons must take an ESOL with citizenship course. A few immigration categories are exempt from the knowledge of language and life in the UK requirement for settlement.

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and listening skills (CEFR level B1). 23 As has previously been the case, there will be some exemptions, such as persons with certain physical or mental conditions. Those who fail the tests will be eligible for further grants of temporary leave instead. 4.2 Family members of refugees and persons with humanitarian protection

The rules for family members of persons granted Refugee status or Humanitarian Protection in the UK differ, depending on whether the relationship began before or after the refugee claimed asylum. 24 ‘Pre-flight’ family members (i.e. spouse, civil partner, unmarried or same-sex partner and children under 18 who were part of the refugee sponsor’s family unit before s/he left their country of habitual residence) can apply to join them in the UK. 25 There are no maintenance and accommodation requirements to satisfy. The family members become eligible for permanent settlement in line with the refugee sponsor. In exceptional circumstances applications can also be made on behalf of child relatives (e.g. a bereaved niece or nephew under 18). The new financial requirement for sponsoring a child’s application does not apply in these cases. Applications from ‘post-flight’ family members (including children conceived after the refugee left their country to claim asylum), and adult dependent relatives, are subject to the same requirements as applications from family members of British citizens and persons settled in the UK. Post-flight spouse and child applications submitted on or after 9 July 2012 are therefore subject to the new financial requirement. 4.3 Dependents of points-based system migrants

Spouses and partners of points-based system migrants must now complete five years in the UK with temporary leave to remain (in a route which leads to settlement) before they will be eligible for permanent settlement (rather than two years as previously). Adult dependents applying for Indefinite Leave to Remain from October 2013 will have to pass the Life in the UK test and achieve English language speaking and listening skills at CEFR level B1 (intermediate level) in order to qualify for permanent settlement. 4.4 Article 8-based claims

Persons who cannot satisfy the requirements for the ‘five year’ family route, but who are seeking to remain in the UK on the basis of their right to private and family life under Article 8 of the European Convention on Human Rights (for example, a visa overstayer with family in the UK), must now satisfy new requirements set out in the amended Immigration Rules in order to establish their Article 8 claim. If they are successful, they will initially be granted temporary leave to remain for 30 months. They will only be eligible to apply for permanent settlement after they have completed three further periods of temporary leave (i.e. after ten continuous years’ temporary residence). This is discussed in Library standard note SN06355 Article 8 of ECHR and immigration cases.

23

24

25

The content of the Life in the UK test is also under review: The Guardian, ‘HUK migrants to face ‘patriotic’ citizenship test’H, 1 July 2012 Some different arrangements are in place for persons granted status pre 30 August 2005. See UKBA, Entry Clearance Guidance, HSET 10H and HSET 19H for full details. HC 395 of 1993-4 (as amended), paragraphs 352A - FI

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4.5

Abolition of family visitor visa appeal rights

The July 2011 Family migration consultation paper included a proposal to restrict the rights of appeal against refusal of a family visitor visa. The Government confirmed that it intends to proceed with these plans a few weeks before it announced the outcome of the rest of the family migration consultation - see Library standard note SN06363 Immigration: Family visitor visa appeal rights for further details.

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Transitional arrangements for persons who applied before 9 July

The Home Office’s Statement of Intent summarises how persons who have already submitted an application or been granted leave to remain in a family immigration category are affected by the Immigration Rules changes. 26 The main arrangements are:
• A fiancé(e), proposed civil partner, spouse, civil partner, unmarried partner, same sex partner, child or adult dependant with leave to enter or remain in the UK on the family route granted before 9 July 2012 will remain subject to the rules in force prior to that date. Likewise, those with leave granted before 9 July 2012 as a partner of a migrant with leave under the Points Based System, or as an adult dependant or post-flight family member of a refugee or person granted humanitarian protection in the UK, will also remain subject to the rules in force prior to that date. All the above categories will be eligible to apply for settlement in the UK (including those granted leave as a fiancé(e) or proposed civil partner) under the rules in force before 9 July 2012, subject to the requirement below from October 2013 to pass the Life in the UK test and for B1 level English to qualify for settlement. In particular, this means that the new financial requirement (income threshold) and the new minimum probationary period of five years for partners will not apply; the existing maintenance requirement (including for any dependent child accompanying them or who applies to join them in the UK) and the existing two year probationary period will continue to apply to those already on these routes. The minimum income threshold for sponsoring the settlement in the UK of a non-EEA fiancé(e), proposed civil partner, spouse, civil partner, unmarried partner, same sex partner or child; the minimum probationary period of five years for settlement for all non-EEA partners; and the changes for non-EEA adult dependent relatives, will apply to all new applications to join the family route made on or after 9 July 2012. The requirement for a five year probationary period for settlement in the UK as the partner of a migrant with leave under the Points Based System will apply to all new applicants to enter or remain as such a partner made on or after 9 July 2012.

Further information can be found in Paragraphs A277 - A279 of the Immigration Rules and the Immigration Directorate Instructions ‘Chapter 8 family members transitional arrangements’.

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Home Office impact assessment

The Home Office’s Impact Assessment predicts the effect of the reforms on application volumes:
26

Home Office, HStatement of Intent: Family migrationH, June 2012, paragraphs 132-136

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Overall, from the package of policy proposals set out above, we expect to see: • • A reduction in family route visa grants by between 13,700-18,500 visa grants per annum; An increase in family route leave to remain (LTR) grants of extension of between 23,000-29,000 per annum in the long run, as the probationary period before partners apply for settlement is extended from 2 years to 5 years, and if they do not meet the English Language requirements at indefinite leave to remain (ILR); An increase in LTR grants of extension of between 15,000-60,000 per annum in the long run from Points Based System (PBS) dependants as they are required to spend 5 years in a relationship in the UK with a PBS main applicant; A reduction in ILR grants to zero from 2014 to 2017, and a subsequent fall of around 12,000 ILR grants per annum owing to a lower number of people on the family route due to the impact of the minimum income threshold; (...) 27

With regards to the likely effect of the financial requirement for spouse/partner applications, UKBA case file analysis suggested that around 45% of sponsors sampled were not in employment or earned less that £18,600 per annum. 28 Similarly, the Annual Survey for Hourly Earnings suggested that around 40 - 45% of UK residents earn less than £18,600. However, the Impact Assessment suggests that a proportion of these persons would still be eligible to sponsor a spouse/partner visa - for example, because they may be in receipt of certain welfare benefits and therefore exempt from the requirement, or if they and their partner have appropriate sources of non-employment income, or if they increase their working hours or skills in order to earn a higher income. Taking all this into account, the Impact Assessment estimates that the financial requirement will lead to a 36 - 46% reduction in volumes of visas granted (i.e. out-of-country applications). There is a smaller (10 - 20%) anticipated reduction in volumes of applications granted incountry (e.g. when the foreign spouse is switching from a different immigration category, or applying for the further period of temporary leave as a spouse/partner). This is because the foreign spouses’ employment income can also be taken into account in these cases.

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7.1

Responses to the changes
In Parliament

Responding to the Home Secretary’s oral statement on 11 June, Yvette Cooper, Shadow Home Secretary, said that Labour supports strengthening the family immigration rules to protect UK taxpayers. However, she cast doubt on the effectiveness of the Government’s approach:
On the measures on family migration, when people travel and trade across borders more than they ever did before, there needs to be a fair framework for those who fall in love and build family relationships across borders, too. We agree that stronger safeguards are needed for the taxpayer on family migration. If people want to make this country their home, they should contribute and not be a burden on public funds, but it is not clear that the best way to protect the taxpayer is to focus solely on the
27 28

Home Office HImpact Assessment IA No. HO0065 Changes to family migration rulesH, 12 June 2012, p.4 Home Office HImpact Assessment IA No. HO0065 Changes to family migration rulesH, 12 June 2012, p.19

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sponsor’s salary. For example, in the current economic climate, someone on £40,000 today could lose their job next month, and then, of course, there is no way to protect the taxpayer. The system does not take account of the foreign partner’s income, which might have a differential impact on women. Will the Home Secretary explain why the Government ruled out consulting on a bond that could have been used to protect the taxpayer if someone needed public funds later on? 29

In response, the Home Secretary said that the Government had taken advice from its independent Migration Advisory Committee on how to apply an income threshold for spouse/partner applications, and pointed out that a bond “would only be available to those people who had capital and were able to put up a bond in the first place.” 30 There was a mixed response from backbench Members across the political divide to the Home Secretary’s statement. Some welcomed the changes, expressing hopes that they will tackle public concerns about migrants’ (lack of) integration, ‘sham marriages’, and a lack of public confidence in the immigration system. 31 However, some others were more critical, particularly of the introduction of a minimum income requirement for spouse/partner visas. Several Members highlighted examples of constituency cases which would be unable to satisfy the minimum income threshold, and raised concerns that certain groups would be disproportionately affected, such as young people, ethnic minorities, women and people living in low-pay areas. 32 Fiona MacTaggart MP described the financial requirement as a “means test on family life”, and contrasted it with the Government’s previously-stated “family-friendly” intentions. 33 7.2 NGOs, think-tanks and campaigning organisations

Various migrants’ rights and civil liberties organisations have expressed concerns that the new visa requirements will undermine, rather than enhance, migrant family members’ prospects for integration. The Joint Council for the Welfare of Immigrants and the Migrants’ Rights Network are taking a prominent role in campaigning against the Immigration Rules changes. 34 A Migrants’ Rights Network briefing sets out its concerns:
... the level of the income requirement has been set at the lower end of the range under consideration by the government, at £18,600 rather than £25,700 per year. Overall, however, the new rules will still prevent many thousands of people from exercising their right to a family life in the UK. They will introduce additional hurdles and costs for people, particularly lower earners, who are either British or who are settled here and wish close family members to join them in the UK. As a result, the rules are likely to further undermine the integration of some migrant communities, and to be viewed more widely as unfair as their impacts on both migrants and British people are realised. 35

29 30 31 32 33 34 35

HHC Deb 11 June 2012 cc50-1 HC Deb 11 June 2012 cc51-2 HHC Deb 11 June 2012H c54, c57 HC Deb 11 June 2012 c54, c59 HC Deb 11 June 2012 c58 See, for example, JCWI website ‘HUnited by love, divided by Theresa May’H (accessed 20 August 2012) Migrants’ Rights Network, HGovernment changes to the family migration rules MRN e-briefingH, June 2012

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Similar views have been expressed by the Family Immigration Alliance, a forum for British/settled partners to share experiences of sponsoring their non-EEA national partners’ applications:
While recognising the need to demonstrate support, the FIA considers the threshold of these proposals an act of obscene discrimination not only against citizens/residents with non-EU spouses, but against ethnic minorities, poor, young and disabled people. To deprive access to family members and the individual income they bring to a household presents the most vulnerable in society with an ominous future. More worryingly, it sets the foundation for a deeply stratified society, where finance extends beyond your quality of life, into your freedom to have a family at all. The government has opted for a view that economics alone should be the benchmark for immigration rules across all categories. In the opinion of the FIA, this fails to recognise the non-economic motivations behind family immigration and indeed reveals how piecemeal the government’s efforts to support family life in the UK really are. 36

The Migrant Integration Policy Index (MIPEX) project, led by the British Council and the Migration Policy Group think-tank, has an interactive website which compares migrants’ integration opportunities. This is based on analysis of immigration policies in over 30 countries. A blog post written by one of its Research Co-ordinators compares the UK’s new partner visa rules with those in place in other countries, and considers what impact the rules may have. The author concludes that the new minimum income and English language skills requirements may in fact undermine migrants’ integration prospects:
The UK is slowly becoming one of the least favourable places for non-EU residents and even its own citizens to reunite with their families. Traditionally, the conditions for families to enter the UK were ‘average’ in comparison to most European countries, Australia, Canada, and the United States. Today, the UK is one of the few countries with not only a high income threshold, but also a pre-entry language test and wide restrictions on eligibility (e.g. adult dependents) and the rights of reunited families (e.g. access to benefits, indefinite leave to remain). A high income threshold does not effectively promote long-term economic participation, education, language learning, or fighting forced marriages. Instead, such requirements have a disproportionate impact on limiting the number of family reunions, especially for low-income and vulnerable groups. For many, family life becomes harder or impossible through ‘enforced separation.’ The OECD finds that every extra year that child spends in country of origin and not in country of destination has a negative impact on their language learning and societal adjustment. The OECD’s conclusion is that family reunion should be facilitated as soon as possible. British policy actors must strictly scrutinise whether the new family reunion requirements exacerbate some of the very problems that they are supposed to address. 37

On the other hand, a press release issued by MigrationWatch, which supports a reduction in immigration levels, welcomed the ichanges:
This is a very valuable step forward. We must do everything possible to ensure that new migrants are able to integrate successfully into our society. Integration is enhanced by economic well-being, a common language, and an understanding of UK

36 37

Family Immigration Alliance, ‘HFamily Immigration Rules announced’H, 11 June 2012 MIPEX Blog, H‘Can’t Buy Me Love’H, 6 July 2012

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life. The measures announced today will help communities to tackle these important and sensitive issues. 38

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Handling enquiries from constituents about the new rules

The content (and format) of the new Immigration Rules for family members of British/settled persons who wish to join them in the UK are complex. They are now spread between Part 8 and Appendix FM and FM-SE of the Immigration Rules. Paragraphs A277 - A279 of the Immigration Rules set out which parts of the Rules apply to pre- and post- 9 July 2012 spouse/fiancé(e)/partner visa applicants. The ‘Partners and families’ section on the UKBA website links to further pages with guidance about the Immigration Rules requirements for persons applying under the various different family immigration categories. In particular, the ‘family of British citizens and settled persons’ section contains guidance relevant to applications in the spouse/partner, fiancé(e), adult dependent relative and child categories. The partner and fiancé(e) sections, for example, include links to detailed information about how the financial requirement can be met, and have separate pages for persons who are eligible to apply under the pre-9 July version of the Immigration Rules. The guidance used by UKBA officials is also publicly available: • The UKBA’s Entry Clearance Instructions is used by its staff overseas when deciding visa applications. The ‘Settlement’ section contains guidance relevant to familyrelated visa applications. The Immigration Directorate Instructions are used by UKBA caseworkers assessing family immigration applications made in the UK. ‘Chapter 8 Appendix FM (family members)’ deals with the rules for applications made on or after 9 July 2012; ‘Chapter 8 family members transitional arrangements’ deal with the applications made before that date.

The Immigration Law Practitioner’s Association have produced two information sheets on ‘Family migration - changes to Immigration Rules’. However, as always, constituents seeking advice specific to their circumstances should consult a suitably qualified professional. The website of the Office of the Immigration Services Commissioner explains about the regulation of immigration advisers and includes a useful online ‘adviser finder’. The DirectGov website pages on ‘getting legal advice and legal aid’ may also be helpful for persons seeking legal advice.

38

MigrationWatch, Hpress releaseH, ‘Comment by Kiran Bali on Changes to Family Migration’, 11 June 2012

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