Fresh off the press is the Government’s Statement of Intent: Family Migration which proposes not just to change but to direct the way in which the UKBA and Courts decide Article 8 cases. FM has recently discussed whether it is legally permissible to do this but, for the time being we thought it best to leave any more analysis of the changes to later and just give you the bare bones.
The document makes absolutely essential reading given that most of the major changes will take place in less than a month’s time. There are transitional arrangements and additional transitional arrangements to be scrutinised at paras.132 to 135 of Statement and at Appendix E which sets them out in table form. The key date is 9 July 2012. We ignore it at our peril.
Don’t shoot the messenger:
Article 8 & Family Life (paras.27-53)
Worryingly, the Statement repeats Theresa May’s recent media pronouncements that the approach taken by the UKBA and the courts has ‘…detracted from clear, consistent, predictable and transparent decision-making’ (para. 30) and that ‘…new Immigration Rules will unify consideration under the Rules and Article 8, by defining the basis on which a person can enter or remain in their private and family life’ (para 31). Enshrined in the new rules will be the Government’s view of the public interest, how ‘the balance should be struck between the right to respect for private and family life and the public interest safeguarding the economic well-being of the UK…’ (para.33).
The Statement then talks of the ‘...public policy vacuum’ left in the wake of Courts who ‘…cannot give due weight systematically to the Government’s and Parliament’s view of where the balance should be struck, because they do not know what that view is’ (para.37). The ‘vacuum’ will be filled by rules setting out the Secretary of State’s view. It says that ‘…proportionate rules will make for decisions compatible with Article 8’ (para.38). And there was me worrying. Wait. ‘Where the rules have explicitly taken into account proportionality, the role of the Courts should shift from reviewing the proportionality of individual administrative decisions to reviewing the proportionality of the rules’ (para.39) ‘...The starting point of such a review will be that Parliament has decided how the balance should be struck. Although Parliament’s view is subject to review by the Courts, it should be accorded deference due to a democratic legislature…’ (And I’m not making this up) ‘…If proportionality has already been demonstrated at a general level, it need not, and should not, be re-determined in every individual case’. (para.39).
If the requirements of these new Article 8 Immigration Rules are met, then the applicant will be able to reach settlement in 5 years (the so-called 5 year family route) (para.14).
Discretionary Leave will no longer be granted under Article 8 if the person does not meet the requirements of the rules (para.44). Instead, the person can apply for leave on a ’10 year route to settlement’ (para 45) permitted a grant of indefinite leave to remain after 10 years in line with the current paragraph 276B(i)(a) of the rules (para.46).
The family Immigration Rules will set out a ‘…clear framework for weighing the best interests of the child against the wider public interest in removal cases’ (para.55). The ‘key test for a non-British citizen child remaining on a permanent basis is the length of residence in the UK of the child – which the Immigration Rules will set at at least the last 7 years.’ (para.57).
Article 8 and Private Life (paras.58-64)
Whilst the 10 year rule will remain, the 14 year rule is to be abolished (para.58). The Immigration Rules will provide that, for leave to remain on the basis of private life in the UK, the applicant must: have resided continuously in the UK for at least 20 years (discounting any period of imprisonment); or be under the age of 18 years and have resided continuously in the UK for at least seven years; or be aged 18 years or above but under 25 years and have spent at least half their life residing continuously in the UK; or be aged 18 years or above, have resided continuously in the UK for less than 20 years but have no social, cultural or family ties with their country of origin (para.60).
Article 8 & Criminality (paras.65-69)
The new rules will go beyond the Borders Act 2007 in expressly providing that only in ‘exceptional circumstances’ will family life, the best interests of a child or private life outweigh criminality and the public interest in seeing the person deported where they have received a custodial sentence of at least four years (para.69).
Deportation will ‘normally be proportionate’ where the foreign national criminal has received a custodial sentence between 12 months and less than four years, or has received a custodial sentence of less than 12 months and, in the view of the Secretary of State, their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law.
When will deportation not be proportionate? Hardly ever. If: ‘…they have a genuine and subsisting relationship with a partner in the UK (who is a British citizen, settled in the UK or in the UK with refugee leave or humanitarian protection), and they have lived here with valid leave continuously for at least the last 15 years (excluding any period of imprisonment) and there are insurmountable obstacles to family life with that partner continuing overseas; or they have a genuine and subsisting parental relationship with a British citizen child or a child who has lived in the UK for at least the last seven years, and it would be not be reasonable to expect the child to leave the UK with the foreign national criminal and there is no other family member who is able to care for the child in the UK; or they have been continuously resident in the UK for at least the last 20 years (excluding any period of imprisonment) and they have no social, cultural or family ties with their country of origin, or they are aged under 25 years and have spent at least half of their life residing continuously in the UK (excluding any period of imprisonment)’ (para.68).
I think therefore we can safely say that is an ‘exceptional circumstances’ test. I can’t think of any of my recent clients who would satisfy those requirements.
New Financial Requirements (paras.70-89)
Poor people to be prevented from marrying? Very possibly. For a British citizen or settled person to settle a non-EU fiancé(e), civil partner, spouse, unmarried partner etc the Rules will set a minimum gross annual income threshold of £18,600 There will be a higher threshold to sponsor a child under the age of 18 before the partner reaches settlement: £22,400 for one child in addition to the partner and an additional £2,400 for each further child. The relevant minimum income level will apply at every application stage: entry clearance/leave to remain, further leave to remain and indefinite leave to remain (settlement) (para.74). This will replace the existing maintenance requirements under the current rules as reflected in cases such as KA(Pakistan) but it will not affect PBS workers or students wishing to bring their partner to the United Kingdom (paras.75 to77).
There will be no discretion or flexibility with regard to the level of the financial requirement and no account will be taken of any past or prospective employment/earnings of the migrant applicant; and promises of financial support from third parties will not be accepted, although gifts are prima facie acceptable as is the provision of accommodation (para.83). The higher financial requirement will continue to apply until the migrant partner achieves settlement on the 5 year family route (para.88).
Genuineness of Relationship & the New Probationary Period (paras.96-108)
There will be guidance published on how entry clearance officers and other caseworkers ‘..make informed, consistent decisions based on evidence’. The examples given of the factors that will be included in the guidance are – dare I say it – rather obvious and ones which an applicant’s representatives have always had in mind (if not ECOs themselves).
The probationary period will be extended from 2 years to a minimum of 5 years before partners can apply for settlement on the family route. This requirement will extend to partners of PBS migrants who must show that they have been in a relationship with them in the UK for 5 years as well as serving the 5 years on route to settlement (paras.105-106).
Bereaved partners and victims of domestic violence will continue to be eligible for immediate access to indefinite leave to remain (paras.107-108).
Settlement (paras. 109-125)
Couples who have lived outside the UK for 4 years or more will still have to complete the 5 year probationary period (para.110).
For couples in the United Kingdom, the Immigration Rules will require that, subject to reasonable periods of separation, that they can show at every stage that they intend to live together permanently in the UK (paras. 111-112). From October 2013, all applicants for settlement will have to pass the Life in the UK Test and obtain an English Language qualification in speaking and listening (Level B1) (paras.114-115). For Adult Dependent Relatives, there will be no switching into the settlement category (para.118-119) and will be limited to parents, grandparents, sons, daughters, brothers and sisters (para.120). Purportedly reflecting the ‘..intended thrust of the current rules’ (para.123), those parents or grandparents aged 65 or over will now have to demonstrate that ‘..as a result of age, illness or disability, they require a level of long-term personal care that can only be provided in the UK by their relative and without recourse to public funds’ (para.121). The sponsor will not have to meet the new financial threshold of £18,600.
Refugee Family Reunion (paras.129-131)
Much stays the same here but the changes will affect sponsors of post-flight partners, dependents and children who will be subject to the new income threshold and probationary rules.
There you go, for the moment anyway.
This time last year in her 2011 Gray’s Inn Reading, Lady Hale said this:
‘…As a supporter of the Convention and the work of the Strasbourg Court, my plea to them is to accept that there are some natural limits to the growth and development of the living tree. Otherwise I have a fear that their judgments, and those of the national courts which follow them, will increasingly be defied by our governments and Parliaments. This is a very rare phenomenon at present and long may it remain so.’
This Statement of Intent to my mind represents one such act of defiance.