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

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

About Free Movement

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.