Consultation on family migration: Tories to reintroduce ‘primary purpose’ rule

Free Movement — 

Damian Green

The Government yesterday launched another consultation on restricting immigration, this time family immigration. The splash on the UKBA website is here, the Ministerial statement here, the consultation document here and the accompanying research paper, Family migration: evidence and analysishere.

The affected categories are fiancé(e)s, proposed civil partners, spouses, civil partners, unmarried or same-sex partners, dependent children and adult and elderly dependent relatives. The key proposals are as follows:

  • defining more clearly what constitutes a genuine and continuing marriage, “to help identify sham and forced marriages”, for example requiring that the couple understand a common language, have been in a relationship for at least 12 months, can provide ‘accurate personal details about each other’ and other criteria that any sensible ECO or immigration judge is already applying
  • reintroducing an equivalent to the old ‘primary purpose’ rule, whereby a couple have to show that their combined attachment to the UK is greater than that to any other country before being granted a visa or leave to remain based on their relationship
  • a bizarre new ‘one spouse’ rule whereby ‘serial sponsors abusing the process’ and any person convicted of bigamy or an offence associated with sham marriage attracts a ban on sponsorship for up to 10 years
  • introducing a new minimum income threshold for sponsors of partners and dependants, to ensure that family migrants are adequately supported as a basis for integration – the independent Migration Advisory Committee has been asked to advise on what the threshold should be
  • extending the probationary period before partners can apply for settlement in the UK or claim benefits from 2 years to 5 years
  • introducing a completely new 5 year probationary period for dependent relatives and tightening up the (already very tight indeed) rules on when a ‘dependent’ relative abroad is really dependent
  • forcing established couples who have lived together outside the UK for 4 years or more also to complete the new 5 year probationary period rather than allowing them to settle immediately, as at present
  • requiring partners and adult dependants aged under 65 to demonstrate that they can understand everyday English (B1 level on the Common European Framework for Languages) when they apply for settlement, increasing the current spouse English language requirement from its current A1 level
  • exploring the case for making ‘sham’ a lawful impediment to marriage in England and Wales, and for giving the authorities the power to delay a marriage where sham is suspected
  • scrapping the full right of appeal for family visitor visas
  • compulsory health insurance for some immigration categories (presumably elderly relatives) and compulsory health screening for TB

Some of the consultation looks like politics and fluff. The bit about better defining a genuine and subsisting marriage is preposterous as these are already relevant considerations. What the Home Office really need to do is train their staff better, not legislate on something like this. Regarding income, the Home Office for years has applied a woolly ‘adequacy’ test but judges apply a more sensible approach of requiring a minimum level equivalent to income support plus the other benefits that come with it. The bit about making ‘sham’ a lawful impediment sounds like nonsense – both vicars and registrars are not permitted to conduct sham marriages anyway, so this adds nothing.

In amongst all the dross I did manage to find one useful suggestion:

We propose to ask local authority social services departments in England to carry out an assessment of an individual?s capacity to consent to marriage when the sponsor of a marriage- based visa or leave to remain application is a person with learning difficulties or of another particularly vulnerable group, to confirm that the person understands and has consented to what they are doing.

This would be a welcome protective mechanism, and unlike UKBA social services departments can generally be trusted to do a good, balanced job in conducting this sort of assessment.

As well as the fluff there are some terrible suggestions. The primary purpose rule proposal is clearly and blatantly targeted at ethnic minorities with a family link to the ‘home’ country. Scrapping rights of appeal for family visitors because too many succeed is reprehensible and will only serve further to embed poor quality communication to visa applicants and visit visa decisions. Again, it is ethnic minorities with a familial link abroad who lose out here when their relatives are refused entry for weddings and funerals. Lengthening the probationary period to 5 years and introducing it for established couples and adult dependent relatives seems like plain punishment and deterrence.

The current Government could not be clearer in its message: it doesn’t like immigrants, nor is it terribly fond of ethnic minorities.

Free Movement

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The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.

22 responses to Consultation on family migration: Tories to reintroduce ‘primary purpose’ rule

  1. Oh and they are not particularly fond of American’s either, I have been married to my Brit hubby for almost 5 yrs getting our spousal visa was a snap back then, the problem was i had been a single mother 19 yrs my son just turned 19 when I married, spousal visa’s to the US include Children up to the age of 21 , the UK is only 18, So my son struggled and I tried to support him from here, with the challenges of being 50 with lots of qualifacations , none being recignised. We brought my son here for a vist in June 2009 (Sam was turned 22 after arriving) he fit in fabuliously made friends and even met that special girl (aged 18)..so we applied for an Aduldt child visa, in Dec. and in Feb we got a rejection as the Expirey date had been transposed on the application forn, then we waited and waited, with the understanding that when an Application was accepted and a letter of acceptance sent that the Money would be draw, then you would wait for how ever long it took them to get to your application for review, the money wasn’t draw, and in May I lost my credit card, before the solicitor coul get the new information the the UKBA they tried to draw the money on the Card I had just shut down, so his application was denied with out process for appeal, The solicitor resubmitted with and Extention application, STILL OVER CLERICAL ERRORS we were being denied, and WITH out appeal.
    SO YES I AGREE THEY NED TO DO SOMETHING ABOUT THIER OFFICE!
    My Son was Classifed as an Over stayer and they barged into our home and removed him, The UKBA officers were shaking thier heads wondering why they were breaking up my family , when clearly we had tried to do everything legally and we were not a threat, and with the change in the spousal visa age, My Son and his girl will now have to have a long distance relationship for 1 1/2 yrs , our family is divided and this does affect my heatlh as I have chronic health disorders, but even in Detention with the backing of our MP and community the denied all our rights to Article 8

  2. TiDyMe

    Very disappointing from the Gov’t.
    With Article 8 an EU law, I was surprised at the question in the consultation.

    With Zambrano and Singh (EC38) and other routes opening up, the best the Gov’t can hope for is delaying some migration. Surely they will not be PERMANENTLY depriving people married to British citizens from settling in the UK. Indeed some couples may have children earlier than planned just to make use of Zambrano. What will that do to benefits, numbers, and visa fees.

    Talk about cost saving, I wonder how much it cost the UKBA to remove Zaza’s son.

    The minimum income part was laughable, Not sure how “for richer for poorer ’til death us do part” will get cut and pasted into immigration laws.

  3. Consulation :-

    Question/Assertion 39: What more can be done to reduce burdens on the taxpayer from family migration?

    Last figures I saw, migrants made a net contribution worth about 1p on income tax.

  4. Answer is very simple.Kicked out Cameron wife to some common wealth country with his son and asked her to get from there.Then Cameron would realize how difficult this process is for family members to settle in UK.For them this is a joke and for us this is a question of family.

    • TiDyMe

      “for us this is a question of family”

      If the primary purpose rule is introduced, do you think this will focus the ECOs (and immigration judges) on to the correct issues in assessing family immigration cases?

      I think it could and it may be a silver lining. The problem is the calibre of ECOs (and IJ’s for that matter). They are not exactly people who embrace “continous improvement” or “accuracy” in their roles, as the numerous reports of Mr John Vine continue to highlight.

      PS I occassionally read your articles on NewZimbabwe.com if you are the same Victoria, probably one of a very few British people who do hey :)

    • Mr T ‘ve been following your comments since the Do the Right thing blog. Refering to your comments made on 10 February 2011 at 10:57am :
      “David – Good points

      There are of course occasions where an in-country DLR application could be refer
      1. DLR applications are currently taking 6 weeks to 6 months only to be processed.
      2. DLR visas don’t always have the “no recourse to public funds” stamp, where-as spousals visas do.
      3. For applicants who have already been in the UK 11 years, the 14 year rule occurs within the 3 years DLR. For spouses of British citizens, they will still be eligable for a UK passport after 3 years.
      4. Airfares aren’t cheap, and single fares can be more expensive than returns.
      5. DLR applications don’t risk separation.
      6. If refused, there is always the S.Singh route.”

      Could you elaborate on point 3, would it be better for a person who has already been in UK for 11years apply for ILR at the end of the initial 3years granted? and would spouses with DLR of British citizens be eligible for a UK passport after the initial 3 years?

    • TiDyMe

      For applicants who have already been in the UK 11 years, the 14 year rule occurs within the 3 years DLR. For spouses of British citizens, they will still be eligable for a UK passport after 3 years.”

      DLR normally requires 2 x 3 year visas to be completed before ILR is issued.
      If the non-EU spouse of UK citizen has already been in UK for 11 years, they will pass the 14 years residence before the 2nd of the DLR visa needs applying for.

      The risk is the 14 year rule could be removed and you have to wait the full six years anyway.
      The 3 years legal residence is all that is required for a UK passport for spouses (of UK citizens) who have just obtained their ILR stamp.

  5. you’re right on the last paragraph fm. on both counts

  6. After a few different visas, including Fresh Talent and Work Permit, I’m on an Unmarried Partner visa, hoping to apply for ILR in March 2012. What would a timeline for any introduction of new rules be? After having worked in the UK for almost 7 years, the thought of having to wait another 3 years to apply for ILR, or my British partner’s having to decide to forego a foreign posting so I can stick it out another few years is painful. It angers him at the UKBA that, as a UK citizen, his life is so affected because I’m an immigrant…

  7. I’m a little confused about it all.

    I am UK citizen. My wife (of 7 months) is a national of Azerbaijan, but it Russian. She came to UK on a visitor visa and during this visit we wrote to the UKBA for a COA to marry. They gave us the COA and we got married. She returned home before her visit visa expired. I have been to see her recently and we had a big Russian wedding. She is 19 years old. I am 27.

    Obviously me and my wife wish to live together in the UK but the stupid rule is preventing that. We don’t want to pay for the spouse visa for it to be refused at it is costly. I don’t know if we should do it an appeal or if we would be wasting our time. We don’t know who to turn to to be honest, we just want to be together and not 3000 miles apart :(

    • TiDyMe

      If you had been reading this blog or sort advice, you might have decided to take a 6 month honeymoon in europe after the UK wedding.

  8. This is all just part of a secret program to encourage more UK families to live in other EU member states for a while, before coming home through Singh…

    • TiDyMe

      It would be a good program if countries like Rep. of Ireland, Spain, Portugal, and Greece weren’t bankrupt with economies on their knees and high unemployment. How is anyone meant to be “economically active” in those places. With high student fees in UK perhaps the studying route is the answer, especially if it involves a spouse between 18 and 21.
      Anyway EUM, “never a more true word spoken in jest”.

  9. The income requirement is worrying – it says there’ll now be a test for the sponsor’s income for ILR, and elsewhere that they’ll ONLY consider sponsor’s income – this means that, for example, if the majority of a couple’s income comes from the applicant, or the sponsor is made redundant shortly before they need to apply, then even if they’re earning more than enough to live comfortably and aren’t eligible for benefits, they could still be refused if the SPONSOR’S income doesn’t pass the test. The family would be split up, the applicant would have to go home, despite having lived here for several years.

  10. i am with my partner from the last 4 years and i am here in uk since 2004,if i get married to my partner this means i will wait for more five years to get permanent, in fact i am being here now on post study work visa which will expire in 2013,is my time period will be counted?

  11. “Answer is very simple.Kicked out Cameron wife to some common wealth country with his son and asked her to get from there.Then Cameron would realize how difficult this process is for family members to settle in UK.For them this is a joke and for us this is a question of family.”

    Why would they do that, they’re both British, peopole who marry foreigners make that choice and Britian isnt the only place on this planet to live, people are free to live outside of the UK..No?

    • That’s… not how love works. I can’t believe I have to point this out, but just, no. If a society believes marriage to be such an important and intrinsic part of human experience to the point that a forced marriage is an egregious transgression against human rights, then surely forcing someone NOT to marry whom they wish is a similar transgression. Along the same vein, we cannot withhold some rights in exchange for others; if we are to believe that every law-abiding UK citizen has the right to live where ze chooses, secure a job and belong to a community within hir birth country regardless of class or race, then those rights CANNOT be disintegrated.

      The original poster of that comment was not seriously suggesting deporting David Cameron’s wife (again, can’t believe I have to explain this), but rather using a rather pointed example to highlight the circus of bureaucracy that international couples have to contend with. You know, the whole walk-a-mile-in-my-shoes thing. Of course, since you probably believe that my husband should have married someone else, or should just quit his job in this economy if he ever wants to live with me, then there probably isn’t much hope for you in the way of compassion.

  12. Who the hell has the right to decide where we should or should not settle. The planet belongs to nature and seeing as we are part of the natural world we have the right to roam or settle wherever we choose. The law of nature.

  13. What the hell. My proposed civil partner and I (UK resident) are already faced with £2000 + for visa applications. All my partner wants to do is come here, build a life with me and contribute to the economy. By treating him as an alien, this is alienating me. Once I was a true conservative, but dare say it, bring back Labour if this goes through.
    The extortionate amounts of money generated by Visas should be redirected into investigating and monitoring the status of a marriage, rather than funding a pen pusher who can often reject genuine cases. It is one thing lying about a relationship on paper or with staged photos, but doing it face to face on one or more visits, well that is more difficult.
    One last thing, if an immigrant is financially secure and working, why do we make life hard for them? He or she isn’t claiming benefits. They are probably paying rent, and doing the jobs that a lot of Brits wont do anyway. Focus on getting rid of people that do nothing, don’t contribute and just take from society.

Trackbacks and Pingbacks:

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