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Family migration proposals

Family migration proposals

Damian Green’s speech on immigration on 15 September 2011 revealed various proposals which seem likely to become law. These build and elucidate on previous proposals, previously covered here on the blog.

The tone of the speech and the proposals is clear from the very first words:

The vast majority of people in this country believe that we need less immigration, and I agree.

The current Government certainly doesn’t beat around the bush! Green suggests that immigration figures have stabilised, but this may come back to haunt him. One quarter a trend does not make. The revelation that employers are not making full use of the Points Based System quota is interesting. I’d heard this on the grapevine and could have sworn I had blogged about it but can’t now find the post. I may now be imagining writing blog posts, which cannot be healthy.

Anyway, the proposals seem to be as follows:

  • Ban on foreign spouses sponsoring another spouse within five years of entry
  • Ban on sponsoring spouses for ten years following a conviction relating to sham marriages or bigamy
  • Ban on sponsoring spouses following a conviction for domestic violence or being a respondent to a Forced Marriage Prevention Order (presumably a full order rather than an interim one)
  • Curtailment of existing leave if involved in a sham marriage (the law already allows this anyway: see para 322(2) of the rules)
  • Necessity to speak a common language and know ‘the most basic facts about each other’. This would appear to require interviews by immigration officials, which UKBA has all but eliminated in the last few years. It is difficult to see how this would work with the current ‘hub and spoke’ visa operation.
  • An initial grant of only 12 months leave to enter where the relationship is less than 12 months old. The reference is to relationship rather than marriage. It is difficult to see how this would work in entry clearance cases – will letters, emails and evidence of telephone contact be required? Such evidence is usually presented anyway, although not covering a 12 month period. This proposal will certainly affect arranged marriage cases.
  • Extend probationary period for spouses to five years. It was only a year under the last Tory Government, back in 1997, and was then increased to two years by David Blunkett.
  • A new ‘attachment’ requirement is proposed, with reference to the requirements in Denmark. Those are that the sponsor has resided legally for 15 years and the spouse has visited at least twice. For spouses from relatively poor countries such a requirement would be very difficult to satisfy, particularly given the abysmal quality of decision making at some entry clearance posts. This proposal looks like a straw man, deliberately included for the specific purpose of jettisoning it after the consultation. In the mean time it attracts the most effort and ire from respondents to the consultation and it makes the Government look reasonable even though the other proposals are adopted wholesale.
  • An allegation of sham marriage may be made a lawful impediment to marriage, causing a delay and postponement while such an allegation is investigated.
  • Requests of social services departments to conduct an enquiry into the capacity to marry of any person with learning disabilities or belonging to another particularly vulnerable group. Depending on how it is done, this may amount to an unlawful interference with the right to marry. The courts have approached this subject with considerable sensitivity, but the same cannot be expected of the UK Border Agency nor even social workers unfamiliar with key legal authorities. See the case of In the matter of SA [2005] EWHC 2942 (Fam), [2006] 1 FLR 867.
  • A new minimum income level in excess of the Income Support level. The (No) Migration Advisory Committee has been asked to advise. Apparently a figure of around £24,000 is being contemplated.
  • Third party support to be scrapped (again) or limited to cases where there are compelling and compassionate circumstances.
  • Some sort of change to the accommodation requirement, seemingly formalising the requirement to obtain confirmation from a local authority that accommodation will not be overcrowded where there is no formal mortgage or tenancy agreement.
  • Outside the spouse route, the abolition of indefinite leave to enter for adult dependents.
  • Imposition of English language requirements for children aged 16-17 and for adult dependents under the age of 65, with B1 being the required standard for adults.
  • Family visit appeals to be scrapped (again). The idea that a new application to the ECOs at Islamabad or Dhaka is an adequate remedy is absurd. Judicial review is likely to burgeon.

There is a lot of emphasis on abuse in the speech. There is no mention at all of the positive benefits of immigration.

Lastly, the speech mentions the figure of 155 arrests in sham marriage cases in the last year. No figures are given for convictions. I am suspicious that these figures follow the pattern established in terrorism cases – lots of arrests, followed by no convictions and various claims for damages afterwards. I feel a Freedom of Information request coming on…

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.

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