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The New Rules

When I attempted to read Kafka’s The Castle I gave up half way* through on the basis that the castle K strives to reach was a metaphor for the text of the book itself, which was impenetrable. I tried to tell myself afterwards that Kafka had not wanted me to reach the end, if there was one, and that abandonment was consistent with the author’s intent.

I only later learned he had never finished the book.

The same sense of forlorn despair returned as I first attempted to read Statement of Changes to the Immigration Rules HC 194, laid before Parliament on 13 June 2012 and mainly coming into effect today, 9 July 2012. Part 8 of the Immigration Rules on family immigration is essentially being abolished and replaced with new Appendix FM. In this new appendix, the time-honoured use of a sequence of numbers to structure a legal instrument, good enough for God at the time of the Ten Commandments, is now considered by the drafters to be way too old fashioned. Instead, an alphabet soup of non-sequential designations such as Section E-LTRP, Section D-BPILR and Section R-LTRPT are to be used.

The authors appear to have obtained PhDs in Illogicality from the University of Illogistan and then undertaken extensive vocational and professional training in the Art of Demented Bureaucracy. Either that or the UK Border Agency want to make immigration law so incomprehensible to the public, lawyers and even to UKBA staff that no-one will ever be admitted to this country ever again. An Englishman’s home is his Castle, I suppose.

In honour of this remarkable feat of drafting, surpassing even the Points Based System for incomprehensibility, I have decided to remodel the Ten Commandments in the style of Appendix FM:

YFM-H: Honour your father and mother.

LYG-IAM: I am the Lord your God who brought you out of slavery in Egypt.

SUN-YSRKH: You shall remember and keep the Sabbath day holy.

NOG-YSN: You shall have no other gods but me.

C-YSN: You shall not covet.

CA- YSN: You shall not commit adultery.

NLYGM-YSN: You shall not misuse the name of the Lord your God.

S-YSN: You shall not steal.

BFW-YSN: You shall not bear false witness against thy neighbour.

I may have messed up the order and even missed one, but that’s what happens when you abandon four thousand years of legislative drafting best practice on the basis that you can improve on The Almighty’s methods. Similarly, several major drafting errors are manifest in the new rules and UKBA has confirmed to ILPA (members only here) that they are indeed errors but will not be corrected for at least several months.

The substantive changes wrought by this tortured, tortuous instrument are probably the most significant to family immigration requirements since full blown immigration control was introduced in the late 1960s. No short piece can do justice to the scope of the amendments and training is being offered by HJT Training amongst others. The headline changes are as follows:

  • Minimum sponsor income requirement of £18,600 to bring in a foreign spouse. The income must be proven in certain specified ways.
  • Additional income requirements for any family with children starting at £3,800 [corrected] for the first child and a further £2,400 for each additional child
  • Extension of the ‘probationary period’ for family settlement to all family migration routes and to a period of five years in all cases
  • Abolition of immediate settlement for spouses living together outside the UK for four years or more
  • Reform of adult dependent relative rules to require an applicant to require a high level of personal care by a UK resident as a result of age, illness or disability and to exclude uncles and aunts
  • New route to residence where a child has been resident for seven years
  • Abolition of 14 year long residence rule and replacement with a 20 year residence requirement
  • Those who overstay for more than 28 days will be ineligible to apply under the rules (from 9 July for family members, from 1 October for other categories)
  • New rules on criminality and settlement and on deportation

The new rules, in combination with the preceding Statement of Intent and a motion passed in the House of Commons on 19 June 2012 following a debate (of sorts), purport to define the scope of Article 8 of the European Convention on Human Rights and the best interests of children. The Government’s position is that the new immigration rules should now define the balance to be struck in all Article 8 cases and that the rules can be challenged in court, but the effect in individual cases cannot be.

I will confine myself for now to stating that this is a surprising proposition and it is unlikely to be long before the matter is ventilated in the higher courts. More detailed examination of the individual changes will follow if or when time allows.

 

  • OK, it might have been a bit sooner than that
Colin Yeo
Colin Yeo A barrister specialising in UK immigration law at Garden Court Chambers in London, I have been practising in immigration law for 15 years. I am passionate about immigration law and founded and edit the Free Movement immigration law blog.

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