On 9 July 2012, the UK government launched its latest assault in its attempts to reduce net migration to the UK from the hundreds to the tens of thousands by 2015: an overhaul of the rules governing family migration.
The changes are specifically targeted at non-European Economic Area (EEA) nationals applying to enter or remain in the UK under the family migration route, that is, on the basis of their family relationship with a British citizen or person settled in the UK. The government perceived the previous rules governing this area of immigration as not encouraging integration and being open to abuse.
These recent changes follow 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 MAJOR CHANGES
One of the most prominent changes involves the introduction of a new minimum income requirement.
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 must meet a gross income threshold of £18,600 per annum (to be reviewed annually).
This will apply at every stage of application, i.e. entry clearance, further leave to remain and settlement. Only certain sources of income will count toward the requirements. These include:
- a sponsor's income from employment or self-employment of the last six months (or either partner's income if already in UK with permission to work);
- non-employment income of either partner received in the last 12 months;
- pension income of either partner received in the last 12 months; and
- maternity allowances or bereavement benefits received in the UK by the sponsor in the last 12 months.
Currently, the foreign spouse's overseas employment income does not count for these purposes.
In addition, 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 to work out how much is required to make up any shortfall amount. The cash savings may result from a gift from a third party but must not be a loan.
Third-party guarantees of financial support will not be permitted.
There is also a higher minimum income threshold to sponsor the settlement of any children; £22,400 for a spouse plus one child and an additional £2,400 for each further child.
Testing the Relationship
To test the "genuineness" of the relationship the rules have been changed so that the minimum probationary period for settlement or indefinite leave to remain (ILR) for non-EEA spouses and partners has been extended from two to five years.
A list of factors associated with genuine relationships has also been published to help UK Border Agency (UK BA) caseworkers decide whether or not the relationship is genuine. These factors include the fact that:
- the couple have been or are co-habiting and are able to provide satisfactory evidence of this;
- the couple have children together (biological, adopted or step-children) and shared responsibility for them;
- the couple share financial responsibilities, e.g. a joint mortgage/tenancy agreement, a joint bank account and/or joint savings, utility bills in both their names;
- the partner and/or applicant have visited the other's home country and family and are able to provide evidence of this. (The fact that an applicant has never visited the UK must not be regarded as a negative factor, but it is a requirement of the Immigration Rules that the couple have met in person); and
- the couple, or their families acting on their behalf, have made definite plans concerning the practicalities of the couple living together in the UK. In the case of an arranged marriage, the couple both consent to the marriage and agree with the plans made by their families.
The exception allowing migrant spouses of British citizens to qualify for settlement immediately on arrival to the UK, where they have been living together overseas for four years, has also been abolished. This means any couple overseas who were hoping to use this provision to get ILR will now have to spend five years in the UK before being eligible.
English Language Requirement
As part of the government's wider policies to foster "cultural integration" and reduce the burden on public services (e.g. provision of translators/translations), from October 2013 all applicants for ILR must 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 (for example, due to certain mental or physical conditions).
Under the new rules adult and elderly dependants (which now no longer includes aunts and uncles) can only settle in the UK where they can demonstrate that, as a result of "age, illness or disability, [they] require long-term personal care to perform everyday tasks" that can only be provided by a relative in the UK without recourse to public funds. This must be because in their home country the care is not available and there is no person in that country who can reasonably provide it. 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.
If the sponsor is a British citizen or settled in the UK, they must sign a five-year undertaking promising to maintain and care for the applicant. This route is only available to an applicant outside the UK: a person cannot switch into this route in the UK unless they are the adult dependant relative of a person in the UK with refugee leave or humanitarian protection.
These changes have been controversial. Some have argued that the new financial requirement for settlement will likely have a disproportionate impact on women (who statistically earn less money) and fails to take into account the differences in cost of living in different regions of the UK. The probationary period of five years for all migrants seeking settlement introduces further instability and uncertainty into the lives of those planning to settle in the UK.
The new rules also 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. Government frustration with the Human Rights Act and article 8 of the ECHR has been obvious for some time. By introducing new rules concerning criminals, private lives and the best interests of children, the government has hoped 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.
Immigration remains one of the most heatedly debated areas of public and political life in the UK. Despite protests against these tough new rules, cutting immigration remains extremely popular with voters. However, one area where the Government has taken a more pragmatic approach over the last few years is in relation to those wishing to invest in the UK. The Tier 1 Investor and Entrepreneur routes remain flexible and offer a relatively straightforward route for entry to and settlement in the UK for those who can afford it. Those who might previously have entered the UK under the spousal route may wish to consider entry clearance as, say, an Investor if they wish to expedite the process for settlement; in certain circumstances this can now be obtained after two years in the UK as an investor.
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