New statement of changes to the Immigration Rules: HC309

A Statement of Changes in Immigration Rules HC309 was laid yesterday, 7 December 2017. This note does not aim at detailing all the changes, instead just highlighting the most significant ones. Except where otherwise indicated, these changes will come into force on 11 January 2018, although applications made before 11 January 2018 will be decided in accordance with the Immigration Rules in force on 10 January 2018. General grounds for refusal The “exceptional circumstances” aspect of the general grounds for refusal in Part 9, Appendix Armed Forces, Appendix FM and Appendix V is removed. In particular, the following paragraph is deleted Where this paragraph applies, unless refusal would be contrary to…

8th December 2017 By Nath Gbikpi

Meghan Markle and the Immigration Rules on marriage

Hearty congratulations from all of us at Free Movement to the former army officer and UN charity worker who are due to marry next year. But given that Meghan Markle is an American citizen, what hoops will the happy couple need to jump through in order to complete their nuptials? You might think that because Ms Markle is marrying a British citizen – and a very British citizen at that – immigration law has no particular role to play. You would be wrong. As what the Home Office would call a “non-EEA national”, she must apply for a visa to enter the UK and marry Prince Harry. Essentially she has two options…

28th November 2017 By Nicholas Webb

The immigration rules for adult dependant relatives: out with the old…

Since July 2012 the immigration rules for adult dependent relatives have been, in practice, almost impossible to meet. Applicants need to demonstrate that they require a level of long-term personal care that they are unable to get in their home country, either due to cost or availability. This makes it impossible for the parents, grandparents or other adult dependent relatives of British citizens and those present and settled in the UK to join their family here. What do the rules say? The rules are set out in Appendix FM to the Immigration Rules. The main ones are as follows: E-ECDR.2.1. The applicant must be the- (a) parent aged 18 years or over;…

8th November 2017 By Colin Yeo

Home Office relief for stroke victim family

Last week, we discussed the case of the Waterman family. Simon Waterman, a British citizen, had suffered a life-altering stroke, but the needs of Mr Waterman and his two children did not to the Home Office constitute “exceptional circumstances” in respect of Mrs Waterman’s application for further leave to remain. Shortly after the article was published, there was good news: Thanks @AmberRuddHR for making the right call. Now will you can meet with us to discuss why countless other families have been ripped apart? — JCWImmigrants (@JCWI_UK) October 20, 2017 Dias Solicitors tell us that “Mrs Waterman was visited by her local MP today [Friday 20 October] and told…

23rd October 2017 By Conor James McKinney

Home Office: a stroke is not “exceptional circumstances”

An ex-soldier who struggles to walk, speak or perform basic household tasks following a stroke has been told that he must look after his children without their Philippine national mother because these do not constitute “exceptional circumstances” in the eyes of the Home Office. Simon and Leah Waterman returned to the UK from the Philippines in 2015 following the stroke. Mr Waterman is a British citizen, as are the couple’s two children. Ms Waterman entered on a visit visa, and subsequently made a human rights application for further leave to remain. Her application was turned down on the basis of the initial overstay. Generally, a spouse in this position will have…

20th October 2017 By Conor James McKinney

Why is the Home Office separating a British man from his wife when she is still breastfeeding their daughter?

This week the story of Dan Newton and his family has hit the newspapers. This post explains why the Home Office has acted as it has. It is not a mistake. Since harsh new rules were introduced in 2012, UK immigration policy does not usually allow British citizens working abroad to return to the UK if they have a foreign spouse. In effect, British citizens are exiled from their own country if they marry abroad. The Independent reports that Mr Newton is British and is married to Carla Zamora, an Ecuadorian citizen. They have three children together. All the children are British citizens. Mr Newton and his wife lived together…

16th October 2017 By Colin Yeo

The Theis case: immigration and nationality law for adopted children

The story of Patrick Thies, a US NHS surgeon who had to return to the US to apply for a new visa for his two adopted children while his British wife and biological son remained in the UK, made the news a couple of weeks ago. Immigration and nationality law as it relates to international adoption is undoubtedly complex and a topic with which only a few practitioners are familiar. There are numerically very few international adoption cases, after all. The inevitable cross over with family law does not make it any easier. This blog post provides an overview of the subject. Types of adoption The first thing to note…

21st August 2017 By Nath Gbikpi

A genuine couple can enter in a marriage of convenience, says High Court

A couple may enter into a “marriage of convenience”, even if they are in a genuine relationship. This was, in summary, the finding of the High Court in the case of Molina, R (On the Application Of) v The Secretary of State for the Home Department [2017] EWHC 1730 (Admin). Background The Appellant, Mr Molina is a Bolivian national. He entered the UK illegally in April 2007 using a false Bolivian passport. In April 2013, he met an Italian national, Ms Salguero, and they entered in a relationship in October 2013. They moved in together in September 2014 and planned to get married on 19 May 2015. On 26 February…

16th August 2017 By Nath Gbikpi

UPDATED: Home Office makes changes to Appendix FM Minimum Income Rule following MM case

On 20 July 2017 the Home Office published changes to the Immigration Rules intended to give effect to findings made by the Supreme Court in MM (Lebanon) & Others v the Secretary for the Home Department [2017] UKSC 10 on the Minimum Income Requirement. The new rules come into effect on 10 August 2017, coinciding with the publication of new Home Office guidance explaining how the changes should be applied. Headline changes The main changes to the Minimum Income Requirement policy are as follows: Other sources of income will be considered to meet the Minimum Income Rule in certain circumstances Where other sources of income are relied upon the applicant,…

10th August 2017 By Chris Desira

Supreme Court confirms that burden for proving marriage of convenience rests with Home Office

The Supreme Court has handed down its judgement in the case of Sadovska and another (Appellants) v Secretary of State for the Home Department (Respondent) (Scotland) [2017] UKSC 54. In unanimously allowing the appeal, the Supreme Court ruled that the burden of proof of establishing a ‘marriage of convenience’ falls on the Home Office. The court therefore concurred with the previous rulings of the Court of Appeal in the cases of Rosa v Secretary of State for the Home Department [2016] EWCA Civ 14 and Agho v The Secretary of State for the Home Department [2015] EWCA Civ 1198 The Appellants are Ms Sadovska, a Lithuanian national, and Mr Malik, a Pakistani national. Ms Sadovska, having lived and…

26th July 2017 By Nath Gbikpi

When will a foreign adoption be recognised in common law for immigration purposes?

In W v SSHD [2017] EWHC 1733 (Fam) (07 July 2017) a married couple resident in the UK on a Tier 2 visa attempted to bring their 2-year-old adoptive son, V, to join them from Nigeria. The application they made for him to enter as a Points Based System dependent was rejected after the Secretary of State refused to recognise the currency of the Nigerian adoption document. As the couple were unable to satisfy any of the available statutory routes to demonstrate the adoption in the UK, the only option available was to apply for recognition of the adoption at common law. Such an order would have the same effect…

25th July 2017 By Nick Nason

Alternative options for EU partners: making an application under Appendix FM

Now that the election manifestos have been officially published we have an indication what Labour and Conservative have planned for EU nationals living in Britain. While the Labour manifesto confirmed a pledge to immediately guarantee existing rights for all EU nationals living in Britain the polls continue to point to a Conservative win, with a manifesto that does not guarantee existing rights but seeks to ‘secure entitlements’. This wording suggests those who have yet to establish a “right of residence” will not be covered by the Conservative pledge. In EU law, any EU national has the right of admission to another Member State and can physically remain in that Member…

31st May 2017 By Chris Desira

Court of Appeal dismisses challenge to rules on Adult Dependent Relatives

The Court of Appeal has dismissed the challenge brought by campaign group Britcits to the restrictive Immigration Rules on the admission to the UK of parents, grandparents and other adult dependent relatives. The case is BRITCITS v The Secretary of State for the Home Department [2017] EWCA Civ 368. On 9 July 2012, the Immigration Rules on parents, grandparents and other dependent relatives were fundamentally changed, making it virtually impossible for them to be admitted to the UK to join a carer. The main stumbling blocks are these paragraphs from Appendix FM: E-ECDR.2.4. The applicant or, if the applicant and their partner are the sponsor’s parents or grandparents, the applicant’s partner, must…

30th May 2017 By Colin Yeo

Tribunal says foreign law is a question of fact normally determined by expert evidence

The Home Office proposed to remove the father of a family and three children to India and the wife and mother to Pakistan, thus separating the family. The family argued that they would be permanently separated because the immigration laws of India would not allow entry for the mother. The Home Office argued to the contrary, but the evidence on which the Home Office arguments was based was found to be, um, a bit flawed: It follows that the cornerstone of the Secretary of State’s case crumbles and collapses. The main pillar upon which the Secretary of State has sought to justify the impugned removal decisions has been shown to be devoid…

15th May 2017 By Colin Yeo

Court of Appeal reaffirms position on adult dependent relatives

In Butt v SSHD [2017] EWCA Civ 184 the Court of Appeal considers the weight to be given to the relationship between parents and their adult dependent children in the Article 8 balancing exercise. It is notable – and this was the principle reason it managed to reach the Court of Appeal – because of the original decision of the First-Tier Tribunal (FTT) to make separate findings in relation to parents and those adult dependent children: allowing the appeals of the latter, while rejecting the former. The facts The Butt family arrived in the UK on 7 July 2004. They had been granted visit visas for a 6 month stay but did…

30th March 2017 By Nick Nason

The UK’s spousal and family visa regime: some reflections after the Supreme Court judgment in the MM case | University of Bristol Law School Blog

Very interesting and detailed reflections on the MM case in the Supreme Court on the spouse minimum income rule. Family and spousal migration is only one part of migration policy, and there is the broader issue of what values migration policy should serve generally. In recent political argument in the UK, three sets of voices have been prominent, virtually to the exclusion of all others. First, the proverbial “taxpayer”, the net contributor to government spending. Second, the needs of “business” for skilled and not-so-skilled workers. Third, the “legitimate concerns” of so-called “ordinary people”, constructed as the “white working-class” worried about cultural and demographic change. Largely absent from the discussion have…

13th March 2017 By Colin Yeo

Supreme Court upholds Minimum Income Rule of £18,600 to sponsor foreign spouses in MM case

In linked judgments in the case of MM and others v Secretary of State for the Home Department [2017] UKSC 10, known to many as just “the MM case,” the Supreme Court has this morning upheld in principle the Minimum Income Rule which requires an income of at least £18,600 for British citizens and others to sponsor a foreign spouse. However, the court also held that the rules and policies used by the Home Office to assess such cases would need to be amended to take proper account of the impact on children and other possible sources of income and support. In a further linked judgment, Agyarko v Secretary of State for…

22nd February 2017 By Colin Yeo

Chief inspector criticises Home Office handling of sham marriage cases

The Chief Inspector of Borders and Immigration has published a new report on the Home Office approach to sham marriages. The report is critical of the change in approach brought about by new powers conferred on officials by the Immigration Act 2014: The inspection found that the initial implementation of the new provisions was problematic, indicating a lack of proper planning: the Home Office did not communicate effectively with registrars about its new way of operating, where it no longer attended register offices and prevented ceremonies from proceeding new processes were cumbersome and weakened by their reliance on fragmented IT and by the limited operational support received from local enforcement…

21st December 2016 By Colin Yeo

Upper Tribunal approach to proxy marriages conceded to be wrong by Home Office

In an interesting development on the validity of proxy marriages, the Home Office has taken the view in a Court of Appeal case that the Upper Tribunal’s approach in Kareem [2014] UKUT 24 is wrong in law. The Court of Appeal has declined to simply overrule Kareem on this basis, though, and is asking the Attorney General to appoint an advocate to the court. Those following this blog for some time will be aware that I have previously expressed some scepticism about the correctness of Kareem and the cases which follow it. The general rule of private international law is that a marriage which was lawful in the country in which it occurred…

21st December 2016 By Colin Yeo

Home Office reviews Adult Dependent Relatives rules for parents and grandparents

The Home Office has reviewed operation of the cruel Immigration Rules for Adult Dependent Relatives such as parents or grandparents introduced in July 2012. They are considered to be meeting their policy objectives and will not be changed, the review has concluded. Senior policy adviser Clive Peckover writes: As the note concludes, this reflects the policy intention of reducing burdens on the taxpayer while continuing to allow ADRs to settle here where their long-term personal care needs can only adequately be met in the UK by their sponsor here, without recourse to public funds. It is now virtually impossible for an adult dependent relative, typically a parent or grandparent, to succeed…

15th December 2016 By Colin Yeo

New guidance and numbers on sham marriage investigations published by Home Office

New Home Office guidance on Marriage Investigations has been published. Formally, it is Chapter 30 of the Enforcement Guidance and Instructions. The purpose of the guidance is stated on page 1: This guidance is aimed primarily at Immigration Enforcement staff involved in investigating allegations of sham marriage, civil partnerships and marriages of convenience. The publication is is a little curious because on 2 August 2016 I was told in response to a Freedom of Information request that there was no such policy. And how the new policy relates to the existing one on criminal investigation of sham marriages is also a mystery. See also this relevant recent written question in Parliament by…

12th August 2016 By Colin Yeo

Discriminatory to deny refugee spouses right to settle under domestic violence rule

“A” v Secretary of State for the Home Department [2016] CSIH 38 In a decision of 27 May 2016, the Inner House of the Court of Session held that excluding the spouses of refugees from the so-called ‘domestic violence concession’ (DVC) in Section DVILR of the Immigration Rules discriminates against such spouses in violation of Article 14 of the European Convention of Human Rights. Although an application for leave to appeal the decision of the Inner House to the Supreme Court has been lodged by the Secretary of State, it is hoped that the challenge will eventually result in a change to the Immigration Rules so as to afford the…

27th July 2016 By Sarah Crawford

Relatives of refugee child win appeal against refusal of entry

The President of the Upper Tribunal, Mr Justice McCloskey, has allowed on human rights grounds the appeal of the mother and brother of a refugee child from Eritrea. The mother and brother were the appellants and the child in the UK was the sponsor. The appellants had fled Eritrea after the sponsor and ended up in a refugee camp in Sudan. They had applied to come to the UK to join the child but were refused on the basis that there was no provision in the Immigration Rules for the entry of relatives of a child refugee. This contrasts with the position for adult refugees, who can be joined by…

20th May 2016 By Colin Yeo

High Court finds Adult Dependent Relative rule lawful but opens door to individual challenges

The challenge by organisation Britcits to the virtual prohibition on the entry of adult dependant relatives introduced in 2012 has been dismissed: R (on the application of Britcits) v Secretary of State for the Home Department [2016] EWHC 956 (Admin). Despite the disappointing outcome, though, there is a distinct silver lining to the judgment. For background reading on the rule, see this earlier blog post: The new immigration rules for Adult Dependant Relatives: out with the old… In short Mr Justice Mitting felt constrained to dismiss the application due to Aiken LJ’s judgment in MM (Lebanon) and if he had not been bound by that authority he would have declared the rule…

20th May 2016 By Colin Yeo

Removal of married lesbians to India not a flagrant violation of family life

The Court of Appeal has held that the removal of married lesbians to India would not be a flagrant violation of their family life. Paragraph 7 sums up the issues: The FTT found that the appellants would continue to live together as a couple in India and could not be prevented from doing so there, even if they could not have as open a lifestyle as they did in the UK or enjoy a status having legal recognition, such as a civil partnership, under Indian law. Whilst the FTT accepted that the appellants shared family life with each other, it decided that their removal would not have such an effect…

18th May 2016 By Colin Yeo

Appellant must prove proxy marriage is lawful in country in which it was contracted

An EEA appellant must prove a proxy marriage is lawful in country in which it was contracted and in the relevant EEA Member State: It will be for an appellant to prove that their proxy marriage was in accordance with the laws of the country in which it took place, and that both parties were free to marry. The burden of proof may be discharged by production of a marriage certificate issued by a competent authority of the country in which the marriage took place, and reliance upon the statutory presumption of validity consequent to such production. The reliability of marriage certificates and issuance by a competent authority are matters…

18th April 2016 By Colin Yeo

President gives guidance on linked family cases, 7 year rule and Article 8

The President has issued an important determination on the correct approach to multiple applications and appeals from family members, specifically a parent or parents and a child or children with 7 years of residence. The case is PD and Others (Article 8 : conjoined family claims) Sri Lanka [2016] UKUT 108 (IAC). The official headnote gives us the bare bones: In considering the conjoined Article 8 ECHR claims of multiple family members decision-makers should first apply the Immigration Rules to each individual applicant and, if appropriate, then consider Article 8 outside the Rules. This exercise will typically entail the consideration and determination of all claims jointly, so as to ensure that…

4th April 2016 By Colin Yeo

Sonel Mehta of Britcits on the devastating impact of the 2012 family immigration rules

This text is based on a talk given by Sonel on 24 February 2016 at an ILPA event on family immigration law. Since 2012, family immigration in UK has taken a particularly nasty turn, even where and maybe especially where, the sponsor is a British citizen. There was Quila, interfering with the right of 18-21 year old British citizens to marry, Bibi which is still pending a full judgment but imposes language tests on foreign spouses of British citizens pre-entry and there’s of course the MM case (consisting of multiple appellants) heard at the Supreme Court this week. These are people who didn’t think they could become victims of immigration…

26th February 2016 By Sonel (BritCits)

Tribunal interprets spouse extension rule on overstay, required documents and language certificate

The Upper Tribunal interprets spouse extension rule paragraph 284 on overstay and valid applications, required documents and whether an old English language certificate is sufficient in a refreshingly realistic and enabling determination: (i) The correct construction of paragraph 284(iv) of the Immigration Rules is that the applicant has a period of 28 days within which to make an extension of stay application, measured from the date immediately following the last day of leave in the United Kingdom. (ii) The purported requirement in Form FLR(M) that an application for further leave to remain in the United Kingdom as a spouse be supported by certain correspondence in specified terms is unlawful. (iii) The requirement previously…

10th February 2016 By Colin Yeo

Meaning of “parental relationship” under the Immigration Act 2014

Official headnote to R (on the application of RK) v Secretary of State for the Home Department (s.117B(6); “parental relationship” (IJR) [2016] UKUT 31 (IAC): 1. It is not necessary for an individual to have “parental responsibility” in law for there to exist a parental relationship. 2. Whether a person who is not a biological parent is in a “parental relationship” with a child for the purposes of s.117B(6) of the Nationality, Immigration and Asylum Act 2002 depends on the individual circumstances and whether the role that individual plays establishes he or she has “stepped into the shoes” of a parent. 3. Applying that approach, apart from the situation of split…

18th January 2016 By Colin Yeo

Refugee family reunion: a user’s guide

This post is intended for refugees (including those with humanitarian protection), their families and their friends trying to understand the rules on refugee family reunion. The requirements to be met are straightforward and simple for children and spouses that existed at the time the refugee fled his or her country of origin. The children must still be under the age of 18 when the application is made, though. These applications are free and there is no need to show a particular level of income in the UK; even those who are receiving welfare benefits can apply for their family members to join them as long as they can adequately prove that they…

11th January 2016 By Colin Yeo

Presidential guidance on public interest in removal cases affecting children

President McCloskey certainly isn’t wrong when he says of the immigration rules on human rights introduced in 2012: These provisions of the Rules have generated much jurisprudence during the last two years. In this latest contribution to that ever growing jurisprudential midden, Treebhawon and others (section 117B(6)) [2015] UKUT 674 (IAC), the President examines section 117B(6) of the Nationality, Immigration and Asylum Act 2002 as amended by the Immigration Act 2014. This provides: (6) In the case of a person who is not liable to deportation, the public interest does not require the person’s removal where— (a) the person has a genuine and subsisting parental relationship with a qualifying child, and (b)…

16th December 2015 By Colin Yeo

Court of Appeal rules burden for proving sham marriage rests with Home Office

The Court of Appeal has reiterated that the burden of proof for proving whether a marriage is a sham for immigration law purposes rests with the Home Office. The case is Agho v The Secretary of State for the Home Department [2015] EWCA Civ 1198 and it confirms the obiter remarks of former President Blake in the earlier tribunal case of Entry Clearance Officer, Nicosia v Papajorgji [2012] UKUT 00038 (IAC) (FM post: New case law on meaning of genuine and subsisting marriage). The facts of the case might have given rise to a “reasonable suspicion” that the marriage was a sham, but this was insufficient to discharge the burden on the…

9th December 2015 By Colin Yeo

Supreme Court dismisses challenge to English language pre entry test for spouses in Ali and Bibi case

The Supreme Court has dismissed the challenge brought against the introduction of pre-entry English language testing for spouses seeking to enter the UK as the family members of British citizens and those present and settled in the UK. The formal title of the case is R (on the applications of Ali and Bibi) v Secretary of State for the Home Department [2015] UKSC 68 but is will be known generally as just Ali and Bibi. Although the English language rule is upheld as being lawful, the judgment suggests that the Home Office guidance on when exceptions should be made to the rule may be unlawful because it is so restrictive. Further submissions were…

18th November 2015 By Colin Yeo

“The fathers who only see their children on a computer screen: It’s a heartbreaking sign of our times…”

“The fathers who only see their children on a computer screen: It’s a heartbreaking sign of our times…” From the Daily Mail. The article goes on “A landmark legal ruling in 2011 has led to a rapid rise in ‘Skype dads’ … With children living half way around the world relationships can suffer”. But read on and the context is divorce rather than the immigration rules. I haven’t noticed the same coverage of the recent Children’s Commissioner report, oddly, just a standard Press Association news report.

17th September 2015 By Colin Yeo

“I couldn’t pick her up and it just broke my heart”

Last week the Children’s Commissioner for England released a study into the impact of the Coalition Government’s new family immigration rules, introduced in 2012. The report is an emotionally difficult read with some heart breaking quotes but unfortunately I’m not sure that those who should read it will read it; it is hard to imagine that the politicians or civil servants responsible for the rules and their Byzantine implementation will bring themselves to familiarise themselves with the misery they have caused. A good summary is available here and the full report here.

16th September 2015 By Colin Yeo

Court of Appeal considers proper approach to family cases outside the Immigration Rules

The Court of Appeal turns its attention to the admission of family members outside the requirements of the Immigration Rules in the case of Secretary of State for the Home Department v SS (Congo) [2015] EWCA Civ 387. The judgment came out in April and I omitted to write it up at the time as I had overambitious plans to compare it with what seems to be a divergent approach in the Court of Sessions in Scotland, equivalent to the Court of Appeal in England and Wales. I’ve mentioned the Scottish case in this write up but no more than that.

30th June 2015 By Colin Yeo

Gender and immigration: assumptions, presumptions and imbalance

Really interesting, thought provoking piece by Melanie Griffiths on gender and immigration: Gendering the Irregular. To give you a flavour: The immigration system―from the policy level to its everyday operationalisation―is a gendered one. Through the example given, we can see how it goes into the heart of people’s private lives to shape identities and relationships. In this case, the immigration restrictions placed on irregular migrants challenges the gendered expectations of Hope and Alex, and influences how both perform their gender identities. The gendered implications of the immigration system, however, don’t only exist within the intimate realm of people’s home and love lives. Home Office and judicial decision-makers, politicians, the media,…

29th June 2015 By Colin Yeo

UK lowest ranked for family friendly immigration policy

Interesting article by Jan Brulc over on the MRN website: UK sees a sharp drop in its international standing on migrant integration. The UK is now the lowest ranked of the 38 surveyed countries for family friendly immigration policy according to MIPEX, the Migrant Integration Policy Index. Countries include European countries plus other countries with developed economies, such as Japan, Canada, United States and Australia.

17th June 2015 By Colin Yeo

MM case going to Supreme Court

Update: see report of Supreme Court judgment here. Official confirmation (bottom of page 2) from the Supreme Court that permission to appeal has been granted. There is no date listed yet but you will be able to track progress on the Supreme Court website in the current cases section.

15th June 2015 By Colin Yeo