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14 juni 2012

UK: Family migration - new rules announced

It has been nearly a year since the UKBA consulted the public on reforms to family migration. The delay in the government decision on rule changes reflects the controversial nature of these proposals, which seem to have divided the coalition government down the middle.

There have been signs over the past few days that an announcement was on its way, as the government made a series of muscle-flexing statements with a law and order focus in relation to family migration over the weekend. First the criminalisation of forced marriage was announced on Friday, then home secretary Theresa May, in an interview yesterday on the Andrew Marr show, trailed her intentions to attempt to toughen up application of human rights law to foreign prisoners.
Today, finally, she made a statement to the House of Commons outlining her full intentions as regards family migration. Overall,  there are a number of significant changes for family members, in particular those seeking to bring non-EEA spouses and partners to the UK will face new barriers to their entry and settlement in the future. Based on news coverage and the Home Office website, it seems that the major changes will be:
  • New income threshold of £18,600 for those wanting to sponsor a non-EU spouse or partner - increasing to £22,400 for one child and an additional £2,400 for each further child. This falls short of the potential level of £25,700 which was on the table and which the home secretary was apparently pushing for. However, it still means that, based on data from the National Earnings Survey website, nearly 40% of the working population of the UK would be prevented from sponsoring a foreign spouse or partner in the future.
  • Extension of the period before non-EU migrants here on a spouse or partner visa can apply for indefinite leave to remain, from 2 to 5 years. In addition to increasing the insecurity of all families seeking to settle in the UK, it is not clear how the government will minimise the potential impacts on specific groups, such as women in abusive relationships.
  • Requirement that, from October 2013, all people applying to settle in the UK will need to pass an intermediate level English language test and pass the ‘life in the UK’ test. Currently, applicants can either take the Life in the UK Test or take combined English for Speakers of Other Languages (ESOL) and citizenship classes - the system is geared towards accommodating different skills in language ability. This means that the change will impact in particular those without strong English reading and writing skills.
  • Removal of the right of appeal for people refused family visas. However, leaked figures from the Home Office last year suggested that a high proportion of family visit appeals – around 36% – are successful. This suggests that the problem is not with the appeals system, but with the initial decision-making by the UKBA...
  • Restrictions on the ability of non-EEA adult and elderly dependent relatives to settle in the UK, limiting this to those who require long-term personal care that can only be provided in the UK by their relative here, and requiring them to apply from overseas;
  • It seems that the majority of these changes (unless otherwise stated) will come into force one month from now, on 9th July - but will only apply (with the exception of the increased settlement English and LIUK tests from October 2013) to people given leave to enter or remain in the UK under these routes after that date. Find full details on the transitional arrangements and applicability of these new rules on page 34 of the government statement of intent.
Finally, lawyers will be up in arms about the home secretary’s measures aimed at getting tough on foreign criminals trying to ‘dodge deportation’ by using Article 8 of the European Convention on Human Rights. This refers to the handful of foreign criminals a year who mount successful cases against deportation from the UK on the basis of their right to a family life.
She will be organising a vote in the House of Commons which aims to ‘define for the first time where the balance should lie’ between the ‘rights of the law abiding majority’ and ‘a foreign criminal’s right to family and private life’. This promises to be highly controversial - and is likely to be the basis of an ongoing debate about the independence of the UK judiciary from the government.
More information on the impacts of these proposals to follow... In the meantime, you can find full details of the changes on the UKBA website.

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