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

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

What is the position of EU spouses of British citizens following Brexit?

The result of the Brexit referendum has thrown a harsh light on long standing UK Government positions on the free movement rights of EU nationals. Nowhere is this more obvious and more awkward than in the case of EU national spouses of British citizens. I have been receiving many queries about this issue and concern has been expressed in Parliament and in the media.  MEPs and the EU Commission are also thought to be looking into this question and even launching an inquiry into the treatment of EU nationals in the UK. Jean Lambert MEP tabled a question to the Commission late last year. The Commission had started infringement proceedings…

24th January 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

Section 3C does not apply to EU law residence applications

The question before us is whether a person who at one stage was the spouse of an EEA citizen with a right of abode in the United Kingdom but no longer has that status and right is to be treated as having leave either under the Immigration Act 1971 or otherwise after his application for permanent residence as the former spouse of an EEA citizen has been rejected. The answer is a firm “no”. Under the Immigration Act 1971 sections 3C and 4, someone applying for variation of leave under that Act — that is under UK immigration law, rather than the 2006 Immigration (EEA) Regulations — has their leave extended…

5th August 2016 By Paul Erdunast

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

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

“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

Displaying genuineness: cultural translation in the drafting of marriage narratives for immigration applications and appeals by Natasha Carver

Displaying genuineness: cultural translation in the drafting of marriage narratives for immigration applications and appeals by Natasha Carver is available for free during March. This is the abstract: This article uses Finch’s (2007) idea of ‘display’ to analyse the process in which autobiographical statements for family immigration applications and appeals are drafted in the United Kingdom. I argue that legal representatives play a key role in ‘translating culture’ (Good, 2011) in relation to both content and form, a process that is driven primarily by the need to demonstrate compatibility with the cultural assumptions of ethnocentrically conceived Immigration Rules. These rules act as ‘moral gatekeepers’ (Wray, 2006) to set limits on the…

6th March 2015 By Colin Yeo

Proxy marriage and domicile

The idea of a “proxy marriage” is rather alien in the UK and our fairly recently developed romantic love culture. It involves one or both parties to a marriage being represented by someone else at the marriage ceremony rather than attending in person. It is a sort of literal version of one’s mind being elsewhere, I suppose, and in an increasingly globalised and time-poor world will perhaps become more common… Proxy marriages have been addressed in at least two previous tribunal determinations (and my first post on this subject was in 2008) and also featured in a recent Chief Inspector or Borders and Immigration report (and even more so in…

21st July 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

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

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

The Importance Of Being Genuine

Around 3,000 couples in England and Wales will tie the knot tomorrow (Saturday 15 February). According to a Home Office guestimate between 48 and 123 of these marriages will be ‘sham’, which is to say they will not be ‘genuine and subsisting’ as required by UK Immigration Rules. But what does a ‘genuine’ marriage look like? It is not a matter of coincidence that the etymology of ‘genuine’ derives from the Latin for “native, natural” and shares a root with the claim for paternity (‘genus’). Love based on ‘chemistry’ or a ‘natural connection’ is considered the principle ingredient of marriage in most western countries today.

14th February 2014 By Natasha Carver

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

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

A long time to be separated

My client today applied for a spouse visa in May 2012. A refusal was eventually issued in November 2012. The appeal took place today, 14 months after the application and 8 months after the refusal. The hearing took 20 minutes and it was allowed there and then by the judge. It could be another two or three months until the Home Office get around to issuing the visa, I warned. This is no way to run an immigration system for human beings.

30th 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

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

New UKBA announcement on the English language requirements

As we saw yesterday, the topic of English language is de rigueur at the moment. Last week, the UKBA also announced in its April 2013 Statement of Intent that the government is planning changes to the Immigration Rules in relation to the English language requirement when applying for settlement and naturalisation. The planned changes will not take place until 28 October 2013 so, although it seems rare these days, there is some time to take all of this in. The forthcoming changes will be that persons will now be required to pass both the Life in the UK Test and to pass or already hold a qualification at B1 CEFR…

16th April 2013 By Sarah Pinder

The Court of Appeal’s judgment in Chapti/Bibi on pre-entry English tests

It has been over a year since the High Court heard a challenge to the introduction of pre-entry English language tests for spouses and partners (and fiancés and proposed civil partners). It was argued in Chapti & Ors, R (on the application of) v SSHD & Ors [2011] EWHC 3370 (Admin) that the changes to the Immigration Rules were unlawful by reference to Article 8, 12 (right to marry) and 14 (prohibition of discrimination) of the ECHR. In the High Court, Beatson J held that the amendment to the Rules did interfere with the right to respect for family life but that the interference was justified. The claimants appealed to…

15th April 2013 By Sarah Pinder

More changes to the Immigration Rules

Two Statements of Changes to bring to your attention, HC1038 and HC1039. On Monday 1 April 2013, HC1038 came into effect and can be viewed here. Far weightier are the changes contained in HC1039 which will be brought into force on Saturday 6 April 2013 HC1039.   These can be viewed here. HC1038 This adds to the definition of ‘Public Funds’ in paragraph 6 (Definitions) of the Immigration Rules  to include ..(d) Universal Credit under Part 1 of the Welfare Reform Act 2012 or Personal Independence Payment under Part 4 of that Act; (e) Universal Credit, Personal Independence Payment or any domestic rate relief under the Northern Ireland Welfare Reform Act…

4th April 2013 By Iain Palmer

More on pre-entry English language challenge

In his judgment in the case of R (On the Application Of Bhavyesh & Ors) v Secretary of State for the Home Department [2012] EWHC 2789 (Admin) Blake J has dismissed the latest attempt to challenge the requirement that foreign spouses learn English before entering the UK. This challenge is described by the judge as a footnote to the original Chapti judgment by Beatson J and concerns a slightly late attempt to add EU law and gender discrimination challenges to the original case. The new judgment was given on 26 July 2012 but has only just made its way on to BAILII. Many thanks to the eagle-eyed and ever-watchful Adam Wagner of the…

18th October 2012 By Free Movement

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

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

The Case of the Lost Prerogative

View image | gettyimages.com The judgments The judgments in Munir [2012] UKSC 32 and Alvi [2012] UKSC 33 are perhaps the most important in immigration law since the Immigration Act 1971 was passed. The Supreme Court holds that the ancient royal prerogative to control the entry of aliens has been displaced by statutory limitations, rejecting the Secretary of State’s bold argument that because immigration control was a matter of royal prerogative she was under no obligation to lay any rules before Parliament at all. Instead, Parliament intended by the 1971 Act that changes to immigration requirements must comply with the terms of that Act. The Court goes on to hold…

18th July 2012 By Colin Yeo

Pankina upheld by Supreme Court

[UPDATE: for more analysis see new post The Case of the Lost Prerogative] This is huge news in immigration law: the Supreme Court has dismissed the Home Office appeal in Alvi [2012] UKSC 33, upholding the earlier Court of Appeal judgment in Pankina. The press summary can be found here and the full judgment here [here for BAILII version]. This means that substantive requirements in immigration control must be laid before Parliament in the form of proper Immigration Rules under s.3(2) of the Immigration Act 1971. Attempting to import or incorporate requirements in documents such as ‘policy guidance’ outside the proper rules is unlawful. This will have huge implications for the…

18th July 2012 By Colin Yeo

New Statement of Intent on family migration

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…

13th June 2012 By Iain Palmer

Can reducing immigration be a legitimate aim in human rights law?

It has been announced that a minimum income threshold will be introduced for foreign spouses to be eligible to come to or remain in the UK. The level will be set at £18,600 for those without children and at higher levels for those with children. In doing so on Sunday morning breakfast TV Home Secretary Theresa May is reported to have said: “This isn’t just about the numbers though…” Observers of Government immigration policy might be rather surprised to hear this. The Government has made very plain that the intention of its immigration policy is to reduce numbers of immigrants. This is certainly no secret. The Conservative Party manifesto for…

11th June 2012 By Free Movement

Marriage and validity and ‘subsisting’

A couple of cases on marriage were recently decided in the Family Division and are worth reporting here as they could have a bearing on immigration cases where the validity of a marriage is significant in some way. The first of the cases might also be relevant to defining ‘subsisting marriage’ under the Immigration Rules. In Galloway v Goldstein [2012] EWHC 60 (Fam) Mostyn J starts by setting out the background: The background to this application reveals the existence of a phenomenon which is by no means uncommon. The Applicant, whom I shall refer to as the husband, is English and the Respondent, whom I shall refer to as the wife,…

18th April 2012 By Free Movement

Happy Valentine’s Day!

The BBC’s Inside Out Yorkshire programme ran a  story tonight on sham marriages, trailed in a BBC News item the day before. There are six days left to watch the programme on iPlayer if for some reason you would like to see it. As with Team UK Border Force: World Police on Sky, I can’t bring myself to watch it for fear of my damaging my television. If anyone else did manage to put themselves through it, do let me know in the comments below whether there was any coverage of genuine weddings that were disrupted and ruined. I dealt with such a case just recently. The registrar at Islington…

14th February 2012 By Free Movement

New case law on meaning of genuine and subsisting marriage

Several important new cases have just emerged on the subject of marriage and the immigration rules for spouses. They all deal with the evidence and burden of proof in such cases. The President of the Upper Tribunal’s Immigration and Asylum Chamber, Mr Justice Blake, has had a hand in all three. EU sham marriage allegations The first of these is Papajorgji (EEA spouse – marriage of convenience) Greece [2012] UKUT 00038 (IAC), in which the tribunal notes that there is no burden on the applicant to prove that a marriage to an EEA is not a marriage of convenience. The tribunal goes on to highlight EU guidance on the issue of…

7th February 2012 By Colin Yeo