The new immigration rules for Adult Dependant Relatives: out with the old…

Following on from the earlier posts on the July 2012 changes to the Immigration Rules, this post looks at the imigration rules for adult dependent relatives. It will come as no surprise that the new rules raise the bar substantially for those seeking entry under this category. The change most likely to affect all applications is the need to now demonstrate that an applicant requires a level of long-term personal care which 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…

15th December 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

Out with the old, in with the new: Edgehill, Haleemudeen and now Singh

Where an application for leave to remain is made before 9 July 2012 but decided after that date, which Immigration Rules should apply to it? The answer, according to Court of Appeal in Singh v Secretary of State for the Home Department [2015] EWCA Civ 74, is the ‘old’ Rules, but only for decisions made between 9 July and 6 September 2012. Singh finally resolves a conflict in the case law between Edgehill v Secretary of State for the Home Department [2014] EWCA Civ 402 and Haleemudeen v Secretary of State for the Home Department [2014] EWCA Civ 558. The conflict arises from, in the words of Lord Justice Underhill…

23rd February 2015 By Helen Foot

Statement of Changes HC 532

This post is based on an earlier page I made available to Free Movement Members a couple of weeks ago, before Statement of Changes HC 532 took effect. The commencement date of 28 July 2014 has been and gone and we have also seen commencement of the overseas deportation appeals sections of the Immigration Act 2014 (see blog posts here and here), along with the controversial statutory human rights considerations. I will return to the statutory human rights considerations in another post and will also be updating the online course on the Act. They are already covered in some depth in my ebook on the Act. Forgive me for the post that follows…

7th August 2014 By Colin Yeo

Outcome of MM minimum income case in Court of Appeal

UPDATE: see report of Supreme Court judgment here. The judgment is now out in the long awaited case of MM v Secretary of State for the Home Department [2014] EWCA Civ 985, the test case challenging the minimum income threshold for spouses wishing to enter the United Kingdom. The Court of Appeal has allowed the Secretary of State’s appeal. This is terrible, heartbreaking news for those families forced apart by the rule. An appeal to the Supreme Court will be attempted, but it will be many months until any outcome is known. For previous coverage here on Free Movement, including the previous judgment, see here. What follows is just an initial…

11th July 2014 By Colin Yeo

Anniversary of new immigration rules

Yesterday was the two year anniversary of the harsh new immigration rules introduced on 9 July 2012. Tomorrow comes the Court of Appeal decision in the challenge to the spouse minimum income threshold. The effects of these rules are really beginning to bite: much misery has been caused by family separation. Spouses are kept apart or exiled to another country, children are deprived of a parent and grandparents are left lonely, isolated and suffering while their children can only watch helplessly from afar. All from the government that David Cameron said he wanted to be the most family friendly in history. There were several events yesterday, including a demonstration outside…

10th July 2014 By Colin Yeo

3,641 families put on hold

The Home Office has updated its statistics on the number of families with pending applications separated by the £18,600 minimum income threshold for spouses. At the end of December 2013 it was 3,014. At the end of March it stood at 3,641. That is a LOT of separated families and an almost unimaginable amount of anguish. All caused by the Government David Cameron said in Opposition he wanted “to be the most family friendly Government we’ve ever had in this country and that is about everything we do to support families and it’s about supporting every sort of family.” Judgment in the MM case will be soon. But there will almost certainly be an appeal…

2nd July 2014 By Colin Yeo

Update on Haleemudeen vs Edgehill

Haleemudeen on remittal to UT: SoS conceded Edgehill applied, no need for deference to post-July 2012 and found disproportionate on Art 8 — Mansfield Chambers (@MansfieldImm) June 20, 2014 Free Movement write up and prediction here. And an update from Paul Richardson, Counsel for Mr Haleemudeen:

20th June 2014 By Colin Yeo

“No right of appeal” human rights decisions

There can be few immigration practitioners who do not presently encounter decisions in relation to applications made on the basis of peoples’ private and family life which do not carry the right of appeal. In recent years the prevailing tendency has become to segregate decisions, where the applicant is an overstayer or illegal entrant, such that refusals to vary leave to remain are made without further steps to enforce removal, leaving migrants without an appealable immigration decision which would gain them access to a merits appeal in the First-tier Tribunal (because overstayers do not enjoy the right of appeal given section 82(2)(d) of the Nationality Immigration and Asylum Act 2002,…

2nd June 2014 By Mark Symes

Haleemudeen v Secretary of State for the Home Department

UPDATE: Haleemudeen on remittal to UT: SoS conceded Edgehill applied, no need for deference to post-July 2012 and found disproportionate on Art 8 — Mansfield Chambers (@MansfieldImm) June 20, 2014 The facts of Haleemudeen v Secretary of State for the Home Department [2014] EWCA Civ 558 reveal another of those “undesirable” migrants the Home Office is so keen to remove: Mr Haleemudeen is the Assistant Manager of a Tesco Express store in Whitechapel. His wife is a part-time student and hopes to become a nursery school teacher. The couple have made many good friends in this country and Mr Haleemudeen undertakes charity work for the Sri Lankan Muslim community of…

22nd May 2014 By Colin Yeo

Adult dependent relatives: JCWI survey

When the Immigration Rules for families were changed in July 2012, it was the minimum income threshold that rightly attracted the most attention. It has caused huge misery and has divided many loving families, sometimes separating children from parents. It is particularly harsh because the income threshold is set so far in excess of the national minimum wage that many working families simply cannot afford to live together in the UK: no matter how many hours they work, they will never, ever qualify. It is heartbreaking. Less attention has been paid to an equally severe change to the rules on ‘adult dependent relatives’: normally, the foreign national elderly parents of…

15th April 2014 By Colin Yeo

New rules do not apply to old applications

The Court of Appeal has in the case of Edgehill & Anor v Secretary of State for the Home Department [2014] EWCA Civ 402 settled the question of whether the new human rights rules introduced on 9 July 2012 apply to applications made before that date: they do not. Specifically, it is unlawful to apply rule 276ADE on long residence to applications that were already outstanding at the date the new rule came into force.

9th April 2014 By Colin Yeo

3,014 families put on hold by Home Office

This is while the Home Office, judges and lawyers battle the harsh spouse minimum income threshold through the courts. For an idea of the human misery this is causing, see the distressing comments on this blog here, here and here.

12th March 2014 By Colin Yeo

Spouse visa minimum income case heard last week

UPDATE: Outcome now known and reported here. Last week the Court of Appeal heard the Home Office appeal in the spouse visa minimum income case. The judges heard argument over two days and did not give a decision there and then. The timescale for a decision is unknown but is likely to be weeks rather than months.

11th March 2014 By Colin Yeo

Gulshan (Article 8 – new Rules – correct approach) [2013] UKUT 640 (IAC)

It is sad when a judge tasked with deciding whether a British pensioner should live out his last days with his wife or without comments that this was a very run of the mill case Maybe for the judge. In which case the judge should consider his or her position as a judge. It certainly is not ‘run of the mill’ for those affected. Unfortunately, this patrician insouciance when determining other people’s lives infects many who work in immigration law. In this case Cranston J goes on to comment that the pensioner concerned only “relatively recently became a British citizen”. He is but a ‘Plastic Brit‘, as The Daily Mail…

8th January 2014 By Colin Yeo

Soldiers to be separated from spouses and children by new rules

Newly introduced Immigration Rules (Statement of Changes HC 803) due to take effect on 1 December 2013 will end a concession for family members of members of the armed forces, forcing many such families to separate if the soldier is stationed to the UK. Ending the concession and bringing soldiers into line with other British citizens and foreign nationals subject to the minimum income threshold ignores the unique position of the armed forces. A soldier does not have any control over the country to which he or she is posted or for how long, so the position is not analogous to any other British citizen or foreign national choosing to work abroad…

20th November 2013 By Colin Yeo

Update on Home Office appeal against spouse minimum income judgment

I’ve had quite a few queries asking for updates on the spouse minimum income case, MM & Ors v Secretary of State for the Home Department [2013] EWHC 1900 (Admin). The challenge to the rules essentially succeeded in the High Court but the Home Office have appealed to the Court of Appeal (blog post: “High Court finds minimum income rules disproportionate and unjustified“). Sanjeev Sharma of JM Wilson Solicitors in Birmingham is the leading solicitor in the case and the Home Office appeal in the Court of Appeal is to be heard between 3 and 5 March 2014. Judgment is likely to come some time after that. [UPDATE: blog post on how the hearing…

28th October 2013 By Colin Yeo

Stranded spouses: a convenient form of child abduction

Child abduction is a criminal offence. It requires covert departure from the UK to another country, and from the abductor’s point of view preferably one that is not in Europe, not a signatory to the Hague Convention and that does not have a bilateral agreement with the UK. The incredibly extensive powers available to the High Court include ‘port stop’ orders for prevention of undetected departure or entry and obtaining various records of the abductor and family members from third parties in order to locate the missing child. All this is intended to and does make child abduction very difficult and very risky. Some parents, though, have cottoned on to…

24th October 2013 By Colin Yeo

‘Form not substance’: Deport rules do not change the law

Theresa May spent over a year saying her new immigration rules would weaken Article 8 rights for “foreign criminals” but conceded the point within a day at the Court of Appeal. MF (Nigeria) v SSHD [2013] EWCA Civ 1192 makes clear that the Immigration Rules governing deportation now provide a ‘complete code’ for the Article 8 rights of foreign criminals. But they do not change the substantive law relating to Article 8 proportionality assessments and do not create a legal test of exceptionality for succeeding where the Rules are not met.

22nd October 2013 By Omar Shibli

Divided families video

Fantastic video by Maryam Tafakory about the effect of the minimum income rule for spouses. Hat tip to Migrants Rights Network.

31st July 2013 By Colin Yeo

Hope for Families Divided by the Income Threshold

Last week Monday, I represented a married couple in the husband’s immigration appeal in the First-Tier Tribunal instructed by Yomi Oni-Williams of Owens Solicitors.  I have the couple’s consent to write this post although there is no need for me to publish any identifying information.

22nd July 2013 By Sarah Pinder

Divided families

Last week saw the anniversary of the miserable new family immigration rules, introduced on 9 July 2012. Heartache and anguish was predicted and has, tragically, come to pass. I attended and spoke at the demonstration outside the Home Office co-ordinated by JCWI, MRN, Brit Cits and others. It was, frankly, distressing to be surrounded by so many fragmented, broken half families

16th July 2013 By Colin Yeo

Divided Families Day of Action – 9 July 2013

Following the All Party Parliamentary Group on Migration’s report published on 10 June 2013 – covered on Free Movement earlier last month – the ‘new’ family migration rules have been debated twice in Parliament.  First, within a Westminster Hall debate on 19 June 2013 (Hansard & video footage) and more recently, in the House of Lords on 4 July 2013 (Hansard & video footage).  The latter was rather ominous, as we now know, that was the day before Mr Justice Blake’s judgment in MM & Ors v SSHD [2013] EWHC 1900 (Admin) handed down on Friday in relation to the income threshold of £18,600 and covered on Free Movement here. In the…

8th July 2013 By Sarah Pinder

High Court finds minimum income rules disproportionate and unjustified

Almost exactly a year after they were first introduced, Mr Justice Blake sitting in the High Court has in a lengthy, complex and very carefully considered judgment found that the controversial immigration rules requiring a minimum income of at least £18,600 for spouse visa applications are ‘unjustified and disproportionate’ where the sponsor is a refugee or a British citizen. The case is MM & Ors v Secretary of State for the Home Department [2013] EWHC 1900 (Admin). At paragraph 126 Blake J holds as follows: “…to set the figure significantly higher than even the £13,400 gross annual wage effectively denies young people and many thousands of low-wage earners in full…

5th July 2013 By Colin Yeo

Parliament Committee Report on New Family Rules and Westminster Debate

Last week, Free Movement posted the fruits of a FoI request disclosing the statistics in relation to partner applications from pre- and post-July 2012.  These figures were then analysed and fair conclusions were drawn in relation to gender discrimination on the basis that female sponsors generally earn less than male ones and therefore would find it more difficult to meet the new income threshold for maintenance. Last week, also saw the publication of the All-Party Parliamentary Group on Migration’s inquiry entitled “Report of the Inquiry into New Family Migration Rules” June 2013. This is a welcome report, which looked in particular at the new minimum income threshold of £18,600 (with…

20th June 2013 By Sarah Pinder

Will the real Article 8 please stand up!

In the reported case of Green (Article 8 – new rules) [2013] UKUT 254 (IAC), the Upper Tribunal again reaffirmed that despite the Immigration Rules pertaining to incorporate Article 8, tribunals should continue to consider the substantive Article 8 claim even if the Immigration Rules cannot be met. The official head note of Green states: ​(1) In Nagre v SSHD [2013] EWHC 720 (Admin) the Administrative Court approved the guidance of the Upper Tribunal in Izuazu [2013] UKUT 45 (IAC) in turn endorsing the two stage approach recommended by the Upper Tribunal in MF (Article 8 – new rules) Nigeria [2012] UKUT 393 (IAC). Sales J added the proviso that…

19th June 2013 By Sanaz Saifolahi

British women disproportionately affected by new immigration rules

A new Freedom of Information request has revealed that British women have been affected disproportionately compared against men by new minimum income rules for spouse and partner applications. There has been a 20% drop in the female-sponsored proportion of applications made, which suggests that women have been disproportionately put off applying for spouses to join them under the new regime. Of the applications that were made there has then been a further 23% drop in the female-sponsored proportion of successful applications in which a visa was subsequently issued. The new rules were brought into force on 9 July 2012. The minimum income requirement for spouses and partners was increased dramatically…

10th June 2013 By Colin Yeo

High Court rejects May’s high politics

The High Court has endorsed the controversial approach of the Upper Tribunal towards the new immigration rules on human rights. Mr Justice Sales, drawing on concessions made by the Home Office, has found that the correct approach is a two stage one whereby the rules must first be considered and then human rights must be separately considered afterwards. The case is R (on the application of Nagre) v Secretary of State for the Home Department [2013] EWHC 720 (Admin). Home Secretary Theresa May has forcefully argued outside the legal arena that this is the wrong approach and that judges following this two stage approach are somehow frustrating the will of…

18th April 2013 By Colin Yeo

May be wrong

Theresa May this weekend launched a blistering and unprecedented attack on ‘a minority of judges’, accused them of ignoring the will of Parliament by refusing to deport foreign criminals. Remarkably, she said that: A minority think it is their role to determine whether or not foreigners who commit serious crimes shall be deported. A lawyer’s answer is that this is exactly what judges have been appointed to do and indeed instructed to do by primary legislation passed by Parliament. It is not their role to do as May demands in every single case. This is not North Korea. Back in June 2012 I wrote that: May wants judges always to answer ‘yes’…

18th February 2013 By Free Movement

This instrument is drawn to the special attention of the House on the grounds it may inappropriately achieve its policy objective. House of Lords Secondary Legislation Scrutiny Committee, 6th Report of Session 2012-13, Statement of Changes in Immigration Rules (HC 194) (source)

17th February 2013 By Free Movement

Human rights and the immigration rules

The Upper Tribunal has yet again rejected the Government’s contention that new immigration rules define and delineate the extent of the United Kingdom’s human rights obligations. The latest case is Ogundimu (Article 8 – new rules) Nigeria [2013] UKUT 60 (IAC) but it follows on from two other recent determinations, Izuazu (Article 8 – new rules) [2013] UKUT 45 (IAC) and MF (Article 8 – new rules) Nigeria [2012] UKUT 00393 (IAC). Together, these cases represent a demolition of the Government’s attempts to gain exclusive ownership over Article 8 of the European Convention on Human Rights, the right to a private and family life. The cases do, however, recognise that the…

11th February 2013 By Colin Yeo

More new Immigration Rules with immediate effect

Statement of Changes HC 820 was laid before Parliament yesterday, 12 December 2012, to come into effect today, 13 December 2012. You  need look no further than the fact that this is the ninth Statement of Changes to the Immigration Rules this year alone if you need to know what is wrong with immigration law and why the UK Border Agency simply cannot cope. And surely in no other area of law would the Government introduce new rules with no warning that have retrospective effect and change one’s eligibility even after one made an application under a different, earlier set of rules? It is becoming so routine that it is almost…

13th December 2012 By Colin Yeo

More new rules…

On 22 November 2012 a new Statement of Changes was laid which brings in quite a few amendments to the Immigration Rules. A large proportion of those changes are yet again to clarify, correct and/or put into place what was apparently always intended with the July 2012 changes. Other changes also include new provisions. Due to the significant number of these changes, I have sought to summarise the more substantial ones below and then I have organised the more technical and perhaps less wide-ranging changes in a table format, which largely relate to the points-based categories and which will be posted shortly. Most of the changes come into force on…

3rd December 2012 By Sarah Pinder

Controversial new human rights rules rejected

The Upper Tribunal has rejected the Government’s attempt exhaustively to define the scope and meaning of Article 8 private and family life in the controversial new immigration rules introduced in July 2012. The case is  MF (Article 8 – new rules) Nigeria [2012] UKUT 00393 (IAC) and the result will be no surprise to any lawyer. In short the tribunal holds that immigration judges must start their determination of a human rights case by deciding the case under the immigration rules, including the rules that purport to define Article 8. If the case does not succeed under the rules the judge must go on and decide the case under what…

31st October 2012 By Colin Yeo

The New Deportation Rules

From 9 July 2012 the UKBA’s new rules on deportation took effect and should be retrospective, paragraph A362 stating ‘Where Article 8 is raised in the context of deportation…the claim under Article 8 will only succeed where the requirements of these rules as at 9 July 2012 are met, regardless of when the notice of intention to deport or the deportation order…was served.’  If then, regardless of when the notice of intention to deport or the deportation order was served, the requirements of these rules have now to be met one wonders why Home Office Presenting Officers and the Secretary of State’s counsel are currently being instructed not to raise…

7th September 2012 By Iain Palmer

New Statement of Changes – sigh…

Yes another Statement of Changes – HC 565 –  has been laid and (hold your breath), most of it comes into force… today!  I am grateful to Alison Harvey at ILPA, whose hard-work is truly immeasurable:  an e-mail was sent out at 11pm last night alerting members to this following another member (and not the UKBA) bringing it to her attention. We seem to have a repeat achievement from the 19th July Statement of Changes which came into force the day after:  I checked the UKBA website this morning and this current Statement was only laid yesterday… Sigh…  (again) Needless to say that we haven’t managed to go through the whole…

6th September 2012 By Sarah Pinder

Family life as a parent: the new rules

Continuing with our efforts to decipher and digest the new Immigration Rules, this post examines the changes made to the categories relevant to parents of children who are here in the UK. As is common to most if not all categories under the new Rules, this section is also subject to the “Suitability” criteria, which, for some reason, can only be found under ‘Family Life as a Partner’.  These suitability criteria essentially provide for general grounds for refusal which were previously found under Paragraph 320 for example i.e. being subject to a deportation order, presence in the UK is not conducive to the public good, being in breach of the…

30th August 2012 By Sarah Pinder

Theresa May Qualifies a Qualified Right

  As the third in a series of blog posts on the radical new July 2012 immigration rules we turn now to the Home Secretary’s attempt to “define” the right to family and private life under Article 8 of the European Convention on Human Rights, which is incorporated into our domestic law in the Human Rights Act 1998. Article 8 reads: 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the…

15th August 2012 By Claire Physsas

New rules on long residence

As the second in a series of blog posts on the radical new July 2012 immigration rules we turn now to long residence requirements. Transitional Provisions Applications for indefinite leave to remain made under Paragraph 276B(i)(a) of the Immigration Rules which relate to the 10 years continuous lawful leave in the UK will continue to be possible. This rule is, however, subject to the new criminality (i.e. suitability) criteria where the application is decided on or after 9 July 2012, irrespective of the date of application. An applicant for further leave or indefinite leave to remain who has overstayed by more than 28 days will have interrupted their continuous leave…

13th August 2012 By Pearl Yong

A case of tough love

In June 2012 Human Rights organisation Liberty issued a briefing on  the proposed changes to the Immigration Rules on spouses and partners and introduction of a minimum income threshold. The old rule required that spouses and partners show they had ‘adequate’ support and would not have recourse to public funds, which meant their income needed to be in excess of income support levels. Liberty had the following to say: The Government now seeks to replace that law with a far blunter instrument – indeed, the Home Office itself has indicated that in many cases the income threshold will impose a restriction that is higher than that required to protect the public…

8th August 2012 By Nishan Paramjorthy