New rules for family migration

Dear Mr Bassie,

I intend to make an application sometime in the future to settle in the United Kingdom with my wife. I am aware that there are some new rules that are coming into force. I would like to know whether these will affect my plans.

- D.P.

Dear D.P.,

There are some new immigration rules that are to be announced and will be coming into effect with respect to family migration.

During June 2012, the United Kingdom Government announced that there would be changes to the Immigration Rules for non-European nationals who are applying to enter or remain in the United Kingdom via the family migration route.

The new Immigration Rules will unify the thinking under the Immigration Rules and Article 8 of the European Convention on Human Rights by defining the basis on which a person can enter or remain in the United Kingdom based on his or her family or private life.

In June 2012, those Rules were put before the United Kingdom Parliament and will bring these changes into effect. Also included were an impact assessment, a policy-equality statement, and a statement on the compatibility of the rules with Article 8. Most of these changes to the Rules came into effect as of 9th July, 2012.

The changes that are now coming through are as a result of the United Kingdom Government's programme of reform of the immigration routes and wide consultation and expert advice from the Migration Advisory Committee.

There are a number of changes. These include the introduction of a new minimum income threshold of £18,600 for a person to sponsor settlement in the United Kingdom of a spouse or partner, or fiancé(e), or proposed civil partner of non-European Economic Area (EEA) nationality. There is a higher threshold for any children who will also be sponsored. This will be £22,400 for one child and an additional £2,400 for each additional child.

There will also be published, in casework guidance, a list of factors associated with genuine and non-genuine relationships to help the United Kingdom Border Agency caseworkers to focus on the relevant issues.

Extension period

Also, there will be an extension of the minimum probationary period for settlement for non-EEA spouses and partners from two years to five years. This is primarily aimed at testing the genuineness of the relationship. There will also be the abolishment of immediate settlement for the migrant spouses and partner where the situation is that a couple has been living together overseas for at least four years. The Rules will now require them to complete a five-year probationary period.

It should also be noted that from October 2013, the rules will require that all applicants for settlement will need to pass the Life in the United Kingdom Test and also present an English language speaking and listening qualification at B1 level, or above, of the Common European Framework of Reference for Languages unless they have been given an exemption.

Other changes to the rules pertain to the allowance of adult and elderly dependants to settle in the United Kingdom in cases only where the dependent can demonstrate that as a result of age, illness, or disability, he or she will require a level of long-term personal care that can only be provided by a relative in the United Kingdom. However, such an application will require the applicant to apply from overseas rather than switch in the United Kingdom from another category, for example as a visitor.

The new Rules will also restrict family visit visa appeals, initially by narrowing the current definitions of family and sponsor for appeal purposes. It is also anticipated that subject to the passage of the Crime and Courts Bill, which was published on May 11, 2012, there will be the removal of the full right of appeal against refusal of a family visit visa.

Just for completeness, if an applicant already has leave on the basis of being the spouse or partner of a settled person, then he or she needs to meet the current Rules when applying for settlement on this basis, and not on the new rules.

I hope this helps.

John S. Bassie is a barrister/attorney-at-law who practises law in Jamaica. He is a Supreme Court-appointed mediator, a Fellow of the Chartered Institute of Arbitrators, a chartered arbitrator, and a member of the Immigration Law Practitioners Association (UK). Email: lawbassie@yahoo.com.