Proposed Changes to Family Immigration Rules

This month, the UK Border Agency (UKBA) has brought out a consultation designed to tighten the routes for migrants coming to live and settle in the UK on the basis of family related grounds. In this article some of the facts and figures that have led to these proposals will be highlighted, and the proposals themselves discussed in light of how they may affect family immigration.

UKBA Family Migration Reports

In 2010, family migration accounted for around 18 per cent of all non-EU immigration to the UK, with 48,900 visas granted to spouses, partners and dependants of British citizens and those with permanent residence in the UK.

Reports carried out by the UKBA have brought to light various issues:

Two-thirds of a sample of those granted a marriage visa in 2009 had never visited the UK before deciding to move here permanently
20 per cent of a sample of sponsors of marriage visa applicants were either unemployed or had an income below the national minimum wage;
37 per cent of sponsors from the sample were living with family members or friends; and
In 2009-10, the Department for Work and Pensions spent £2.6 million on telephone interpreting services and nearly £400,000 on document translation.

The Proposals

Marriage and Civil Partnership

The UKBA proposes to make a checklist as to what constitutes a genuine and continuing marriage, partnership or relationship, in order to help identify sham and forced marriages.

Some factors which may be used to decide whether a marriage or relationship is genuine include:

Whether the relationship was entered into voluntarily
Whether the couple are able to provide accurate personal details about each other
Whether the couple have been in a relationship for a minimum of 12 months prior to the application and have been in regular contact during this period

Comments

Providing tick box requirements for couples would present a real danger of penalising genuine couples whose circumstances do not fit into the mould of the UKBA’s ideal of a normal marriage situation. Many couples may have difficulty in providing the specified evidence and delay may be caused to applications while this evidence is provided.

Newland Chase feels that the proposed requirements are unnecessary and unjustifiable since there is already provision in UKBA policy to determine what is meant by a genuine and subsisting relationship. Couples are already required to provide documentation to prove their relationship is genuine.

Entry Clearance Officers should receive more in depth training and guidance to enable them to assess from the evidence provided whether a relationship is genuine and subsisting.

Maintenance and Accommodation

The UKBA proposes to introduce a minimum income threshold for those sponsoring family migrants to ensure they are provided for at a level that supports integration.

Under the proposals, only the income and cash savings of the UK based sponsor would be taken into account in determining whether the maintenance requirement has been met. UKBA would not take into account any cash savings available to the applicant, or any potential earnings of the applicant in the UK.

Comments

The main aim of these measures are to reduce the burden on the taxpayer, yet the present requirements are already designed to ensure that the applicant can be maintained and accommodated without recourse to public funds. In addition, settlement will not at present be granted if an individual has relied on public funds during the probationary period.

The proposed measures are likely factually to set the bar for maintenance and accommodation far higher than that necessary to ensure that public funds are not drawn on. The proposals seem therefore unjustified and unnecessary. In particular, it is not reflective of the true financial situation of the applicant if their potential earnings and third party support cannot be taken into account.

The UKBA’s justification for this measure is that it is hard to apply the maintenance requirement consistently. This indicates that UKBA staff would benefit from better training and guidance, rather than that the rules themselves ought to be changed.

Settlement

The UKBA’s proposals in this area include plans to:

Increase the two year spouse probationary period to five years before spouses and partners can apply for settlement, to test the genuineness of the relationship and to encourage the integration of the spouse or partner into British life before reaching settlement, and to reduce burdens on the taxpayer by postponing access to benefits for which no tax or National Insurance contribution has been made
End indefinite leave to enter for spouses and partners who have been married or in a relationship for at least four years before entering the UK and require them to complete a five year probationary period before they can apply for settlement
Require spouses and partners applying for settlement to demonstrate that they can understand every day English at level B1

Comments

Couples will be prevented from moving abroad, for example to other European countries during the 5 year probationary period. This is unduly restrictive and not in keeping with the EU law principles of free movement.

Increasing the probationary period is aimed at tackling abuse. The vast majority of marriages entered into between settled persons and migrants are not marriages of convenience, however the proposals will have a serious effect on all spouses or partners they affect. In particular, the proposals will reduce access to employment as often those with limited leave will have difficulty in obtaining or keeping long term employment or in obtaining promotions or changing jobs according to their desired career path. A five year probationary period may in some cases cause strain on the relationship. The effects on the majority of applicants are disproportionately harsh to the aim the UKBA is trying to achieve through this measure.

It does not follow automatically that those who do wish to enter into marriages of convenience will be put off by a longer probationary period.

For couples who have lived together for four years outside the UK, they have already demonstrated the genuineness of their marriage through the length of their marriage and in some cases they will have children. It would be unnecessarily detrimental to them to be subjected to a five year probationary period and would be unjust.

The requirement for spouses to speak B1 English before settling may cause difficulty and stress for genuine spouses who may well have integrated into the UK, but may not have a strong formal education and may be daunted by the prospect of an academic test. Spouses should be assisted with English language learning by government sponsored mandatory English classes, and it is likely that the majority would welcome these. However, it is unduly harsh to impose a strict academic language requirement on individuals which is only likely to act as a barrier to settlement for genuine spouses.

Sham Marriages

The UKBA’s proposals in this area include plans to:

Combine the role and functions of the registrar with the UK Border Agency, so that they have immigration enforcement powers where sham marriage is suspected
Require more documentation from foreign nationals wishing to marry to establish their entitlement to marry through legislation
Require some couples intending to marry to attend an interview with the UK Border Agency before being granted authority to marry

Comments

Marriage in itself does not confer any immigration right on individuals. The proposals are wholly unnecessary in enforcing immigration control as immigration officials may still consider whether a marriage is genuine before granting settlement or leave to remain.

Further Proposals by the UKBA include plans to:

Increase public awareness of the consequences of forced marriage
Introduce legislation to make forced marriage a criminal offence
Introduce a minimum income threshold for sponsoring other family members, taking into account age and number of dependants
End indefinite leave to enter for adult dependants and dependants aged 65 or over and require them to complete a 5 year probationary period before being able to apply for settlement
Considering changing the length of leave granted to child dependants nearing their 18^th birthday, reflecting the fact that once they reach the age of 18 they will be able to apply for leave to remain in their own right.
Require dependants aged 16 or 17 and adult dependants under 65 to demonstrate that they can speak and understand a basic level of English (at A1 CEFR) before being granted leave to enter or remain
Require adult dependants under 65 to be able to understand everyday English at level B1 CEFR before applying to settle

Comments

The existing immigration rules in relation to dependant family members other than partners and minor children are already stringent. The numbers of dependants coming to the UK in this category are relatively small. Any further requirements are likely to reduce the ability of families to exercise the fundamental right of looking after their minor children or elderly parents.

In applying strict requirements for settlement, it would be unduly harsh to remove or deport individuals who have come to the end of the probationary period and do not qualify for settlement, but who by that time have reached their seventies and who have already demonstrated that they have no family to support them in their country of origin.

Points Based System Dependants

The UKBA’s proposals in this area include plans to:

Increase the probationary period before settlement for dependants under the points based system from two years to five years, to test the genuineness of the relationship.
Only time spent in the UK on a route to settlement will count towards the five year probationary period e.g. time spent as a student before switching into the PBS dependant route would not count.
Require dependants under the PBS to understand everyday English (B1 CEFR) before being granted settlement.

Comments

Often points based system dependants will have come to the UK as a married couple and it would be unfair and harsh to impose restrictions on them so that they cannot settle.

Under the employment related settlement proposals, partners may only enter the route to settlement after three years. They may in this case then be required to complete a further five year probationary period before applying for settlement. This would cause unnecessary anxiety, expense and stress to genuine couples. In many cases it would not be clear immediately to the points based system migrant whether they will be eligible to enter into the route to settlement, in which case the partner will be left to worry as to whether they will eventually become eligible for settlement.

Conclusion

The government are clearly keen to tighten up the regulations in relation to dependants and indeed recent changes such as the introduction of the ‘English Language’ requirement indicate that they are serious about this. Arguably these changes may lead to less dependants being able to meet these requirements and will subsequently discourage applicants and their families moving to the UK.

The new suggested changes appear to be even tougher. In light of the above Newland Chase strongly recommends that those seeking to relocate to the UK with their families do so as soon as practicable before any possible rule changes take place.

Newland Chase

16.09.2011