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Family immigration and Article 8, 11 June 2012
Updated 14 June 2012 with note of meeting with the UK Border Agency
Family immigration and Article 8, 11 June 2012
On 14 June 2012 Sophie Barrett-Brown, Barry O'Leary and Alison Harvey met with the officials dealing with the new rules. The headline points are:
i) From the moment parliament approves the rules (intended for Tuesday) the Home Office will start arguing the interpretation of Article 8 put forward in the rules.
ii) Guidance is anticipated to be published next week (but do not hold your breath). We made the point that is very difficult to advise people now until we see the guidance.
iii) Those in country with leave, if they do not meet the requirements, will have the option of the 10 year route. It is those who are overstayers or who are seeking entry clearance who are going to face the big challenges.
iii) We have highlighted places where we think the drafting does not achieve what was intended and officials are looking at this. In particular:
a) 28 days overstaying - we think they mean from date of decison, but this is not what rules says. 90 days overstaying being what leads to a re-entry ban similarly.
b) Domestic violence (there is a typo in the version of the rules on the Home Office website but more substantively the new rules mean you must last have had leave as a spouse or partner. We think that change was not intended (STatement of Intent says no change) and it is being looked at.
c) Points-Based System dependants - notion that you must previously have had leave as a points-based system dependant for five years is not what Statement of Intent says, but is what rules say. We think something has gone wrong here. It is being looked at.
d) We have asked them to look at the carve out for those with rights under the EC treaty as opposed to the regs.
e) Seven year child rule is they think being reintroduced. We say not so the "reasoanble to leave the country" stuff fudges it.
Extracts from UK Border Agency 12 June 2012 email setting out the changes (I have left out the spin which is bad for everyone's blood pressure. That has meant leaving out all that is said about Article 8. On that topic, see notes below.
...we will only allow migrants to come or remain if they can support themselves financially, and that the partner is able to integrate into British society.
Our overall approach will ensure that there is a clear focus on whether a relationship is genuine, that the sponsor can properly support their partner and any dependents financially, and that the partner is able to integrate into British society.
The key changes we will make are:
* A minimum income threshold of ?18,600 for 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 reaches 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. 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.
* Increasing the minimum probationary period from two years to five years before non-EEA spouses and partners can apply for settlement.
* Abolishing 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 included 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.
Compliance with the Rules will now be rewarded. A non-EEA applicant in the UK who does not meet all the requirements of the five-year route, but has a legal basis to remain here under Article 8, such as where a child's best interests so require, will be granted leave under the Rules on a 10-year path to settlement. The current Rule allowing a person here unlawfully to qualify for settlement after 14 years will be abolished. A person will generally have to be in the UK for a minimum of 20 years before they can apply to remain here, on a 10-year route to settlement from that point, on the basis of the Article 8 right to respect for private life.
The new Rules will take effect from 9 July 2012, following a debate in Parliament. A statement of intent will be published on the Home Office website setting out in detail the planned requirements of the new Immigration Rules as well as a summary of the responses to the public consultation. Changes to the Immigration Rules for family migration to the UK for those of non-European Economic Area (non-EEA) nationality will be laid before Parliament shortly. An economic impact assessment of those requirements, a policy equality statement and ... will also be published shortly.
A person who has been granted or has applied for leave on the family route before 9 July 2012 will remain subject to the rules in force prior to that date.
Note by Sue Shutter of Theresa May's announcement in parliament
Just to summarise some of the points in the statement & questions afterwards, in case of interest before the Hansard is available:
T May: should be three principles on family migration - genuine relationship, families pay their way, families integrate with British society.
Immigration rules will be laid 'shortly', to come into effect on 9 July, there will be full impact assessments publlished with the rules.
In response to Kate Green there has been discussion with other departments, eg children.
A Statement of Intent willbe put in the Library.
The probationary period will be increased to five years.
There will be new guidelines on dealing with 'sham' marriages.
The levels of support necessary were described (see below). Later, in response to questions, the Home Secretary said that savings could also be considered, but not third party support. Also that there might be some flexibility for a disabled sponsor. Also that the present rules for family members of those in armed forces would continue for a transitional period.
It is currently 'too easy' for elderly dependent relatives to come here, in future the family will have to show that they cannot organise care abroad, and that they will be organising care here (implication, no NHS or social care available). Also no switching for elderly relatives, and no aunts & uncles.
From Oct 2013, settlement applicants will have to pass Life in the UK test & intermediate language exam.
Visit visa appeals are an unnecessary waste of resources.
The judiciary have asked for parliamentary guidance on what the Article 8 balancing exercise should entail so she will give it to them.
Yvette Cooper (Labour party): Agreed that Article 8 should not be used to stop deportation - but it probably only affected 185 people not deported last year, so not enough to meet government targets. She would be involved in discussion on getting the balance right but is puzzled how an imm rules debate, rather than primary legislation, would affect the courts. She agrees with 'protecting public funds' but not with not considering migrant spouse's income (Home Secretary never mentioned anying about whether government would consider it or not) and again suggested the bond idea - govt has firmly rejected that.
ack Straw raised the case of his constituent, Amy Houston, killed in a hit & run accident by a failed asylum-seeker & that the atter should have been deported earlier, & that Article 8 should not apply to someone like him.
Several Conservative party members want legislation to curb Art 8, rather than just 'guidance'.
Several Labour members spoke of the injustice of the income limit, in different communities & different areas of the country.
Many questions not answered .
What was been said on the Andrew Marr show. The Andrew Marr show is not big on detail but what one generally takes from what has been said is that clients in a position to make family immigration applications might do well, depending on their individual circumstances, to get a move on.
Article 8
The Home Secretary, who perhaps does not read a great deal of caselaw, wishes to produce guidance, approved by parliament, telling the judges what to make of Article 8(2). If they fail to take account of her guidance (as they will be bound to do as a matter of law if it departs from the jurisprudence of the Strasbourg courts) then she wishes to make the interpretation of Article 8 the subject of primary legislation. Such legislation would of course be vulnerable to a declaration of incompatibility. Insofar as she succeeds in her aim of binding the UK courts she will simply move the forum for challenge to Strasbourg and thus delay cases. Thus one assumes that this is about style not substance: talking tough and blaming the judiciary if persons remain in the UK.
Family migration
First, this is about the money. It will be necessary to show income of ?18,600 (whether savings will count for something is unclear at this stage) to bring in a partner; ?22,400 to bring in a partner and child and thence ?2400 per child. What a child alone will cost is not yet clear.
Not being poor is a start, but not enough: the Home Secretary talked of a ?Britishness? test to aid integration, speaking and understanding English to a certain level and the life in the UK test. She may have been talking about the existing tests.
Family immigration and Article 8, 11 June 2012
Updated 14 June 2012 with note of meeting with the UK Border Agency
Family immigration and Article 8, 11 June 2012
On 14 June 2012 Sophie Barrett-Brown, Barry O'Leary and Alison Harvey met with the officials dealing with the new rules. The headline points are:
i) From the moment parliament approves the rules (intended for Tuesday) the Home Office will start arguing the interpretation of Article 8 put forward in the rules.
ii) Guidance is anticipated to be published next week (but do not hold your breath). We made the point that is very difficult to advise people now until we see the guidance.
iii) Those in country with leave, if they do not meet the requirements, will have the option of the 10 year route. It is those who are overstayers or who are seeking entry clearance who are going to face the big challenges.
iii) We have highlighted places where we think the drafting does not achieve what was intended and officials are looking at this. In particular:
a) 28 days overstaying - we think they mean from date of decison, but this is not what rules says. 90 days overstaying being what leads to a re-entry ban similarly.
b) Domestic violence (there is a typo in the version of the rules on the Home Office website but more substantively the new rules mean you must last have had leave as a spouse or partner. We think that change was not intended (STatement of Intent says no change) and it is being looked at.
c) Points-Based System dependants - notion that you must previously have had leave as a points-based system dependant for five years is not what Statement of Intent says, but is what rules say. We think something has gone wrong here. It is being looked at.
d) We have asked them to look at the carve out for those with rights under the EC treaty as opposed to the regs.
e) Seven year child rule is they think being reintroduced. We say not so the "reasoanble to leave the country" stuff fudges it.
Extracts from UK Border Agency 12 June 2012 email setting out the changes (I have left out the spin which is bad for everyone's blood pressure. That has meant leaving out all that is said about Article 8. On that topic, see notes below.
...we will only allow migrants to come or remain if they can support themselves financially, and that the partner is able to integrate into British society.
Our overall approach will ensure that there is a clear focus on whether a relationship is genuine, that the sponsor can properly support their partner and any dependents financially, and that the partner is able to integrate into British society.
The key changes we will make are:
* A minimum income threshold of ?18,600 for 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 reaches 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. 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.
* Increasing the minimum probationary period from two years to five years before non-EEA spouses and partners can apply for settlement.
* Abolishing 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 included 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.
Compliance with the Rules will now be rewarded. A non-EEA applicant in the UK who does not meet all the requirements of the five-year route, but has a legal basis to remain here under Article 8, such as where a child's best interests so require, will be granted leave under the Rules on a 10-year path to settlement. The current Rule allowing a person here unlawfully to qualify for settlement after 14 years will be abolished. A person will generally have to be in the UK for a minimum of 20 years before they can apply to remain here, on a 10-year route to settlement from that point, on the basis of the Article 8 right to respect for private life.
The new Rules will take effect from 9 July 2012, following a debate in Parliament. A statement of intent will be published on the Home Office website setting out in detail the planned requirements of the new Immigration Rules as well as a summary of the responses to the public consultation. Changes to the Immigration Rules for family migration to the UK for those of non-European Economic Area (non-EEA) nationality will be laid before Parliament shortly. An economic impact assessment of those requirements, a policy equality statement and ... will also be published shortly.
A person who has been granted or has applied for leave on the family route before 9 July 2012 will remain subject to the rules in force prior to that date.
Note by Sue Shutter of Theresa May's announcement in parliament
Just to summarise some of the points in the statement & questions afterwards, in case of interest before the Hansard is available:
T May: should be three principles on family migration - genuine relationship, families pay their way, families integrate with British society.
Immigration rules will be laid 'shortly', to come into effect on 9 July, there will be full impact assessments publlished with the rules.
In response to Kate Green there has been discussion with other departments, eg children.
A Statement of Intent willbe put in the Library.
The probationary period will be increased to five years.
There will be new guidelines on dealing with 'sham' marriages.
The levels of support necessary were described (see below). Later, in response to questions, the Home Secretary said that savings could also be considered, but not third party support. Also that there might be some flexibility for a disabled sponsor. Also that the present rules for family members of those in armed forces would continue for a transitional period.
It is currently 'too easy' for elderly dependent relatives to come here, in future the family will have to show that they cannot organise care abroad, and that they will be organising care here (implication, no NHS or social care available). Also no switching for elderly relatives, and no aunts & uncles.
From Oct 2013, settlement applicants will have to pass Life in the UK test & intermediate language exam.
Visit visa appeals are an unnecessary waste of resources.
The judiciary have asked for parliamentary guidance on what the Article 8 balancing exercise should entail so she will give it to them.
Yvette Cooper (Labour party): Agreed that Article 8 should not be used to stop deportation - but it probably only affected 185 people not deported last year, so not enough to meet government targets. She would be involved in discussion on getting the balance right but is puzzled how an imm rules debate, rather than primary legislation, would affect the courts. She agrees with 'protecting public funds' but not with not considering migrant spouse's income (Home Secretary never mentioned anying about whether government would consider it or not) and again suggested the bond idea - govt has firmly rejected that.
ack Straw raised the case of his constituent, Amy Houston, killed in a hit & run accident by a failed asylum-seeker & that the atter should have been deported earlier, & that Article 8 should not apply to someone like him.
Several Conservative party members want legislation to curb Art 8, rather than just 'guidance'.
Several Labour members spoke of the injustice of the income limit, in different communities & different areas of the country.
Many questions not answered .
What was been said on the Andrew Marr show. The Andrew Marr show is not big on detail but what one generally takes from what has been said is that clients in a position to make family immigration applications might do well, depending on their individual circumstances, to get a move on.
Article 8
The Home Secretary, who perhaps does not read a great deal of caselaw, wishes to produce guidance, approved by parliament, telling the judges what to make of Article 8(2). If they fail to take account of her guidance (as they will be bound to do as a matter of law if it departs from the jurisprudence of the Strasbourg courts) then she wishes to make the interpretation of Article 8 the subject of primary legislation. Such legislation would of course be vulnerable to a declaration of incompatibility. Insofar as she succeeds in her aim of binding the UK courts she will simply move the forum for challenge to Strasbourg and thus delay cases. Thus one assumes that this is about style not substance: talking tough and blaming the judiciary if persons remain in the UK.
Family migration
First, this is about the money. It will be necessary to show income of ?18,600 (whether savings will count for something is unclear at this stage) to bring in a partner; ?22,400 to bring in a partner and child and thence ?2400 per child. What a child alone will cost is not yet clear.
Not being poor is a start, but not enough: the Home Secretary talked of a ?Britishness? test to aid integration, speaking and understanding English to a certain level and the life in the UK test. She may have been talking about the existing tests.