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Dramatic changes to family migration
On 11 June, the Home Office announced the latest round of changes to the UK Immigration Rules. The broad reforms aim to restrict the ability of non-European Economic Area (EEA) migrants to enter or remain in the UK under the family migration route, and to curtail the use of article 8 of the European Convention on Human Rights (ECHR) - the right to respect for private and family life - in the immigration context.
Laid before parliament on 13 June, most of the new rules came into force on 9 July. These amendments follow on the heels of what has already been a dramatic series of wholesale revisions to the UK immigration system in the areas of work, study, work to settlement, and visitor routes. The changes reflect the government’s near myopic focus on reducing net migration from the hundreds of thousands to tens of thousands by 2015.
Due to the scope of the recent reforms, this article can only highlight some of the more significant points. Readers are encouraged to review the new rules and related supplementary documents released by the government for greater detail.
Minimum income requirements
Among the most prominent changes is the new minimum income requirement. From 9 July, British citizens and settled persons who wish to sponsor a non-EEA migrant as their spouse, civil partner, unmarried partner, same-sex partner, fiancé(e) or proposed civil partner (hereafter ‘partner’) must meet an income threshold of £18,600. Additionally, those seeking also to sponsor a child or children under the age of 18 will be required to meet a higher income threshold of:
- an additional £3,800 for the first child; and
- £2,400 for each child thereafter.
At each stage of the settlement process applicants will be required to demonstrate that they meet the new financial criteria. However, only certain sources will count toward the requirements. These include:
- a sponsor’s income from specified employment or self-employment of the last six months (or either partner’s income if already in UK with permission to work);
- specified non-employment income of either partner received in the last 12 months;
- specified pension income of either partner received in the last 12 months;
- specified maternity allowances or bereavement benefits received in the UK by the sponsor in the last 12 months (see rules - guidance conflicts);
- other specified income of either partner received in the last 12 months; and
- an amount in cash savings above £16,000 under the control of either partner and held for at least six months.
Third-party guarantees of financial support will not be permitted.
In an effort to ensure the ‘genuineness’ of relationships and to prevent migrants who have not paid taxes or national insurance contributions from taking advantage of the welfare system, the government now imposes a minimum probationary period of five years (raised from two years) before non-EEA migrant partners may apply for settlement.
The five-year probationary period is broken into a 33-month period and a 30-month period, each with its own application, followed by a third and final application for indefinite leave to remain (ILR) (applicants may be eligible for ILR after 60 months). This change coincides with the abolition of a previous rule permitting immediate settlement for non-EEA migrants who lived with their British/settled spouse for at least four years overseas.
Where a migrant is not able to meet the new financial requirements, but removal would breach their article 8 rights (as codified in the rules), a 10-year route to settlement has been established (granted in one 33-month period and three 30-month periods, plus a fifth application for ILR).
Additionally, the route to settlement for non-EEA adult dependant relatives, which now no longer includes aunts and uncles, requires applicants to evidence that ‘as a result of age, illness or disability [they] require long-term personal care to perform everyday tasks’. Significantly, they must also demonstrate that, even with the financial assistance of their sponsor, the care required cannot reasonably be obtained or is unaffordable in their home country. Sponsors are required to provide a signed statement promising to maintain and care for the applicant, and migrants may no longer apply from within the UK unless they are the adult dependant relative of a person in the UK with refugee leave or humanitarian protection.
All those applying for settlement from October 2013 will be required to pass the Life in the UK Test and evidence English language skills at B1 level or above (or demonstrate exemption).
Home secretary Theresa May has not been shy about expressing her frustration with the Human Rights Act and article 8 of the ECHR. According to May, the old Immigration Rules lacked clear guidance for caseworkers and domestic courts considering claims arising under article 8. Therefore, the new rules, in concert with explanatory documents and a hastily debated motion in the House of Commons, are meant to ‘fill the policy vacuum’ by detailing specific factors that can weigh in favour of or against such claims. This, the government argues, will provide courts and caseworkers with the framework necessary to balance individuals’ article 8 rights against the public interest.
With the new rules, the government seeks to clarify the balance between a foreign criminal’s article 8 claim to remain in the UK and the state’s interest in their deportation. The presumption now will be that deportation is in the public interest in the following situations:
- where a foreign criminal is sentenced to more than four years’ imprisonment, only ‘exceptional circumstances’ will outweigh public interest;
- where a foreign criminal receives a sentence of at least 12 months but less than four years, deportation will ‘normally’ be proportional unless outweighed by the right to a private or family life in prescribed situations; and
- where a foreign criminal receives a sentence of less than 12 months but it is deemed that they caused severe harm or are recidivist offenders, they too will typically be deported unless outweighed by the right to a private or family life in prescribed situations.
Best interest of the child
The new rules also set out the approach to assess ‘the best interest of the child’. In cases where the child will have to leave the UK because of a parent’s removal, the primary question will be whether it is reasonable for the child to live in another country. Although the government will consider factors such as length of residence, whether there are other family members in the UK and any exceptional circumstances, the default position will be that it is in the best interest of the child to remain with the parent and leave the UK.
A number of changes were introduced relating to individuals making claims arising under article 8 and right to a private life. In order to remain in the UK on this basis, individuals must demonstrate the following:
- they have resided in the UK for at least 20 years, lawfully or unlawfully, subject to criminality and other criteria (the 14-year route to settlement for individuals who have lawfully or unlawfully been continually present in the UK has been abolished); or
- they are under 18 and have spent at least seven years of continuous residence in the UK; or
- they are between 18 and 25 and have spent at least half their life in the UK; or
- they are aged 18 or above, have resided in the UK for less than 20 years, but lack any social, cultural or family ties to their country of origin.
Impact and concerns
The recent changes to the Immigration Rules should be a cause for concern. First, the new financial requirement for settlement will likely have a disproportionate impact on women and certain minority communities who statistically earn less money. Moreover, the requirement does not take into account the differences in cost of living in different regions of the UK and will therefore unfairly burden those living in lower-wage areas.
Second, the new probationary period of five years for all migrants seeking settlement is burdensome and introduces further instability and uncertainty into the lives of those who would otherwise embrace a life in the UK. To suggest, for example, that a couple who have been married for 20 years must prove the ‘genuineness’ of their relationship to the home secretary before the non-EEA migrant spouse may settle is patently absurd.
Finally, the government’s attempt to sway our independent judiciary by procedural fiat with regard to article 8 claims is dubious. Indeed, on 19 June, just days after the announcement and publication of the extensive changes to the Immigration Rules, the government hastily sought support in the Commons for a motion concerning the new rules and article 8. While the motion did little more than confirm that article 8 is a qualified right (something universally acknowledged), the government may attempt to suggest that it amounted to robust parliamentary debate and a unanimous endorsement of the rule changes themselves. Something that it surely was not.
Laura Devine, Laura Devine Solicitors, while Matthew Meyer at Laura Devine Attorneys contributed to this article
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