As part of the government efforts to reduce net migration to sustainable levels, the UK Border Agency (UKBA) has announced significant changes to the Immigration Rules, which came into force from 9 July 2012.
It is estimated that the new rules will prevent up to 18,500 people annually from coming to join family members in the UK.
MAC Report Findings
These changes are based on the Migration Advisory Committee’s (MAC) findings in November 2011, that family migration accounts for 18% of all non-EU immigration to the UK, or 54,000 people out of a net total of 300,000 in the year 2010.
In 2006 the total number was 74,000 showing a definite decline in numbers of family migration to the UK. In 2010, a total number of 69,226 spouses or partners applied for settlement in the UK.
Who will be affected by the new rules?
The new rules will mainly affect non-EU nationals wishing to apply for leave to enter the UK on the basis of their relationship to a British national or a person present and settled in the UK.
Regardless whether they have been together for years in a genuine relationship, spouses, civil partners or unmarried partners of British nationals or settled persons, who fail to meet the new requirements, will face a situation where it may be impossible for them to accompany or join their partner in the UK.
Unsuccessful applicants who applied after 9 July 2012 in the UK for further leave to remain with their British or settled partner will have to leave the UK if they cannot meet the new requirements.
Applicants who have been granted leave to enter or remain after 9 July 2012, who wish to apply for settlement but who fail to meet the financial requirements will be required to leave the UK after living here for two and a half years.
A new and considerably more complicated procedure is used to determine an individual’s abilities to maintain themselves without recourse to public funds.
- A minimum income threshold of at least £18,600 annual gross earnings has been introduced for a UK citizen or person settled in the UK before bringing their foreign spouse and children into the country. The amount increases to £22,400 if one non-EU child is involved and £2,400 per non-EU child thereafter. The UKBA will no longer take into account the foreign partner’s current or future earnings when considering applications for entry clearance.
- There are a number of ways to meet the maintenance requirement:
- The UK citizen or settled person must hold a job paying above the threshold for at least the last six months.
- If the sponsor’s current employment is of less than six months duration but they have been in employment at a salary above the threshold for the last 12 months that could suffice.
- If the sponsor has been in self-employment for the last year, the income from the business will be taken into consideration. If they have been in self-employment for more than one year, the average of the last two years will be taken into account. Cash savings cannot be used to make up for a shortfall in case of self-employment.
- Hold significant personal savings. Cash savings of £16,000 can in some cases be used to make up for a shortfall.
- The sponsor has income from investments or property held in their partner’s name.
Support from third parties such as family members will not be accepted. The funds must be under the British/settled sponsor and their partner’s control.
Sponsors in receipt of a type of disability living allowance or carer’s allowance will be exempt from meeting the new financial requirement but will need to show that their family members can be adequately maintained without recourse to public funds.
Genuineness of relationship
More emphasis will be put on testing the genuineness of the relationship by publishing casework guidance with a list of factors associated with genuine and non-genuine relationships, to help the UKBA caseworkers to focus on these issues.
Settlement after five years
The minimum probationary period for settlement for non-EEA spouses and partners has been extended from two years to five years to test the genuineness of the relationship.
End to immediate settlement
Immediate settlement for migrant spouses and partners, where a couple have been living together overseas for at least four years, has now been abolished.
English language requirements
From October 2013 all applicants who wish to apply for settlement in the UK will be required to pass the Knowledge of Life in the UK test as well as an English language test to level B1 or above. Currently the test for partners is Level A1 of the Common Europe Framework of Reference for Languages.
Duration of leave
Leave will be granted initially for 33 months. Applicants will be required to apply for a further extension of leave for another period of 30 months before they can apply for settlement.
All applications submitted prior to 9 July 2012 will remain subject to the rules in force prior to that date. They will be able to reach settlement in the UK after two years. This is also applicable to a fiancé(e) or proposed civil partner if they were granted entry clearance prior to 9 July 2012.
Applicants who have been granted leave to enter or remain in the UK on the basis of being the spouse or partner of a settled person before 9 July 2012 will need to meet the rules for settlement that were in force before 9 July 2012.
Article 8 of the European Convention on Human Rights
The new changes define the basis on which a person can enter or remain in the UK on the basis of their family or private life, unifying consideration under the rules and Article 8 of the European Convention on Human Rights (ECHR).
Article 8(1) provides that:
‘Everyone has the right to respect for his private and family life, his home and his correspondence.’
Article 8 is a qualified rather than absolute right. Article 8(2) sets out a number of circumstances in which public authorities may interfere with the exercise of this right. These can include the purpose of maintaining effective immigration controls. These are not absolute rights, and they are subject to exceptions that allow for them to be limited or interfered with in the interest of the permissible aims of the state.
In 2011 the UKBA consulted on how respect for a person’s private and family life should be balanced against the need to maintain effective immigration controls, with particular reference to foreign national offenders, as part of a broader consultation on family migration routes. On 11 June 2012 the home secretary announced that the government will change the Immigration Rules in order to ensure that they reflect the qualified nature of Article 8.
The MAC said they understand that, although not expressly mentioned in Article 8(2), case law (such as R (Mahmood) v SSHD ) has established that the maintenance of an effective immigration control falls within the permissible aims set out in Article 8.
Any requirements put in place for family migrants should be balanced with Article 8 rights; this is required by the ECHR. The public interest is not in controlling immigration but in achieving policy objectives such as preventing recourse to public funds and enhancing social cohesion.
A balance must be struck between individual rights and wider policy goals around immigration. It must also be considered that the public benefits widely from immigration and the economic and social benefits it brings. The public also benefits from the existence of the ECHR Article 8 and the universal application it has to the most vulnerable in society.
The fact that non-EU spouses of British citizens have not been allowed to claim benefits in the past makes the new requirements look excessive and onerous and leave British citizens with a low income the choice of exile or splitting up their families.
A British citizen should have the right to live in their own country with their spouse/partner regardless of their nationality as long as they can maintain themselves without recourse to public funds.
The question is what if the non-EU national’s country has similar regressive laws? For example in the case where a civil partner or same-sex unmarried partner does not meet the new financial requirements to live in the UK and they cannot live in the foreign country because they may get persecuted on the basis of their sexuality.
The Joint Council for the Welfare of Immigrants (JCWI) has compiled a case study which highlights the serious consequences families will face under the new rules and questions the logic of the exclusion of third-party support, future employment of not only the sponsor but of the foreign spouse, low currency exchange rates where the sponsor is working abroad, recent entry to the labour market as a graduate and pregnancy.
The Home Office must consider the impact of the separation of families from one another, especially where minor children are involved.
Many find the new rules discriminatory as the required earnings threshold is higher than the national average of earnings and it is easier for an EU citizen to bring their non-EU partner into the UK than it is for a British citizen to do so. An EU national only needs to show that they can meet their costs of living in the UK; no specific income threshold is required.
It might be advisable that the UKBA takes both the sponsor and foreign applicant’s earnings or prospective earnings into account rather than only the sponsor’s, as well as allowing undertakings or bond payments from third parties to assist the applicant.
The new rules are intended to provide a fair system, to promote integration into UK society and to prevent migrants from being a drain on public funds.
The government may succeed in lowering net migration levels, but it remains to be seen if it will stand up to a challenge in the courts.
By Alfreda Joubert, associate, and Samantha Prosser, trainee solicitor, Magrath LLP.
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R (Mahmood) v SSHD  1 WLR 840