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Family migration

16 July 12

New rules affecting family migration are intended to restrict the number of non-EU immigrants to the UK, but in the author's view could operate unfairly

by Damir Duheric

The Conservative-Liberal Democrat coalition Government’s document on family migration published in July 2011 set out proposals to reduce non-EU immigration. In June 2012 they began setting out the measures they intend to introduce. These changes are in addition to reforms already made to the work and student migration routes to the UK. 

The Government is also tackling article 8, the right to respect for private and family life under the ECHR. On 9 July 2012 they are introducing new rules which they claim will strike the “correct balance”, making clear when the public interest in preventing someone from entering or remaining in the UK should outweigh individual rights to family and private life.

Headline changes

The key changes are:

  • A minimum income threshold of £18,600 will apply to 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 achieves settlement.
  • 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. Further, 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.
  • The minimum probationary period before non-EEA spouses and partners can apply for settlement is increased from two to five years.
  • The abolition of 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.
  • 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.

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 and includes 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.

Anyone who has been granted or has applied for leave under the family route before 9 July 2012 will remain subject to the rules in force prior to that date.

Article 8

The Home Secretary’s intention is to produce guidance, approved by Parliament, telling the judges what to make of article 8(2). Judges will be bound to follow it as a matter of law, even if it departs from the jurisprudence of the Strasbourg court. If the judges fail to take the guidance into account, the Home Secretary intends to make the interpretation of article 8 the subject of primary legislation. However, such legislation would be vulnerable to a declaration of incompatibility. If the Home Secretary succeeds in her aim of binding the UK courts, she will simply move the forum for challenge to Strasbourg and thus delay cases.

Family migration

This change is all about income. The new thresholds for partners, and partners plus children, are set out above. What a child alone will cost is not yet clear. It is also not clear whether savings or third party support will count. The Home Secretary talked of a “Britishness” test to aid integration, which appears likely to be similar to the existing English language test and the Life in the UK test.

Right to appeal in family visits

The Immigration Rules include provisions to allow foreign national relatives of British citizens and settled persons to visit their family members in the UK. Those who wish to visit family in the UK may need to apply for entry clearance (a visa). These applications are decided by entry clearance officers. Currently, there is a right of appeal against a refusal of entry clearance for the purpose of a family visit. The Government intends to remove this right of appeal through the Crime and Courts Bill.

In 1993, the Conservative Government previously removed the right of appeal against a refusal of entry clearance in family visit cases. The Labour Party reintroduced it in 2000. This was strongly supported by the Liberal Democrats, and by some Conservatives. Debates in Parliament show the strength of feeling about the issue, both among parliamentarians and in communities outside Parliament. Simon Hughes MP (Liberal Democrat) said:

“The Conservative Government led by the right hon Member for Huntingdon (Mr Major) abolished the right of those who had applied for visas to enter this country to appeal against rejection. That caused widespread disapproval, dissatisfaction and anger. Understandably, the Labour Opposition, like the Liberal Democrats, were committed to restoring the right of appeal.” (Hansard, HC, 20 Nov 2000, col 109)

Clause 24 of the Crime and Courts Bill is intended to remove the right of appeal in family visit cases once again, except where the appeal is on the basis that the refusal of entry clearance is contrary to human rights or race discrimination laws. The Government says that it is better for applicants to make a new application rather than bring an appeal, because this will be cheaper and quicker. However, a new application will be made to the same Embassy and possibly considered by the same entry clearance officer who refused the first application. Last year, the chief inspector, whose job it is to monitor refusals of applications to enter the UK as non-family visitors where there is no right of appeal, made several serious criticisms about the quality of entry clearance decisions.

As was highlighted in 2000 (e.g. by Fiona Mactaggart MP and Jack Straw MP (Hansard, HC, 20 Nov 2000, col 123), one reason the right of appeal is so important is that it gives the applicant an opportunity to clear their name of any false allegation by the entry clearance officer, without which any future application for entry clearance is also likely to be refused. It was also highlighted in 2000 that, where the integrity of family members was doubted by the entry clearance officer, it was important to have a right of appeal that enabled the family member or members in the UK to appear before an independent tribunal to answer questions to address those doubts (see, e.g. Lord Judd and Lord Dholakia, Hansard, HL, 2 Nov 2000, cols 1206, 1216; and David Winnick MP, Hansard, HC, 20 Nov 2000, col 124).

The Government says that many appeals are only successful because new evidence is presented to the immigration judge at the appeal. However, as the chief inspector’s report highlighted, many applications are refused for reasons the applicant could not have anticipated, including where the entry clearance officer refuses an application because particular evidence was not included, yet there was no way the applicant could have known the evidence was wanted or needed. The number and cost of appeals could be reduced if entry clearance officers improved the quality of their decision making, if they asked for any new evidence they needed before refusing the application, and if they properly considered any new evidence before the appeal took place.

The Government has said it expects clause 24 of the Crime and Courts Bill to take effect in 2014. However, it intends to make changes before then. In June 2012 it introduced changes so that those applying to visit a cousin, uncle, aunt, niece or nephew cannot appeal against a refusal of entry clearance, except where the appeal is on the basis that the refusal of entry clearance is contrary to human rights or race discrimination laws. This appears to treat families as limited to parents and children, yet in many families these wider relationships are of great importance.

In August 2011, David Cameron, the Prime Minister, said: “If it hurts families, if it undermines commitment, if it tramples over the values that keep people together, or stops families from being together, then we shouldn’t do it.” However, clause 24, and the changes intended to be introduced before the bill takes effect, will stop families being together, including at especially important times when families come together or provide support to each other, e.g. weddings, funerals, illness or when a child is born. In 2000, Sir Teddy Taylor highlighted how restrictions on appeals against refusal of entry clearance for family visits would discriminate against certain communities (Hansard, HC, 20 Nov 2000, col 132). The same discrimination which he highlighted in 2000 is likely to be the result of the changes the Government now intends to make.

Damir Duheric is an accredited specialist in immigration law practising as D Duheric & Co, Solicitors, Edinburgh
e: damir.duheric@dduhericsolicitors.co.uk

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