Family Migration and Article 8’s New Dress

Theresa May’s rabid immigration policies are no secret and the government is changing the Immigration Rules yet again. It is the eighteenth statement of changes in the Immigration Rules to be announced by the Home Office since the present government ascended to power. Ostensibly, the latest changes attempt to consolidate consideration under the rules and Article 8 of the European Convention on Human Rights. In achieving this goal, in future the rules will define the basis on which people can enter or remain in the UK on the basis of their family or private life. To promote the changes, the Home Office is relying on obiter comments in Huang [2007] UKHL 11 and other non-binding case law to argue that the current Immigration Rules are deficient in balancing the rivalry between individual rights and the greater public interest in Article 8 because the rules “are not the product of active debate in Parliament”.

On 11 June 2012, the Home Office document Family Migration: Statement of Intent announced the government’s designs for curbing family migration from outside the European Union. Following the announcement, in order to set the new rules in motion, the Statement of changes in Immigration Rules HC 194 – garnished with an Impact Assessment, Grounds of Compatibility with Article 8, and a Policy Equality Assessment – was laid before Parliament. All these documents are worth studying in detail and this post can only summarise the changes.

Centrally, from 9 July 2012, the Immigration Rules will include an Appendix FM (family members) that will “interact” with Part 8 (family members). The Appendix, which stretches from pages 19–45 of the statements of changes, is sub-divided into family life with a partner, bereaved partner, victim of domestic violence, family life as a child with limited leave as a partner or parent, family life as a parent of a child in the UK, adult dependent relative and deportation and removal. In relation to private life, a new paragraph 276ADE (requirements to be met by an applicant for leave to remain on the grounds of private life) has also been added to the Immigration Rules.

Equally, the new rules are based on the Migration Advisory Committee’s “expert” advice and the changes are aimed at erecting barriers to keep low-income people out of the UK. The theory driving the changes espouses that family migration accounts for 18 per cent, or 54,000 people out of a net total of 300,000 in the year 2010, of all non-EU immigration to the UK and should, therefore, be culled.

In a similar vein, “protecting the public from foreign criminals” is spearheading the government’s agenda. Likewise, striking the right balance between the right to a family and private life and the public interest in safeguarding the UK’s economic prosperity, by controlling immigration, has been placed at the apex of the changes.

The “reform” of Article 8 is embedded in the government’s view that although the courts have accepted the invitation to assess proportionality on a case-by-case basis, the “problem” is that judges disregard Parliament and the government’s view of exactly where the balance needs to be struck. The contended “imbalance” – which is being labelled by the Home Office as a “policy vacuum” – is driving the changes to the rules. Therefore, the government is purporting to fill the alleged policy vacuum – which has allegedly existed since the Human Rights Act came into force in the year 2000 – in relation to the family life part of the rules to reflect the assessment of proportionality in relation to Article 8. The move is also being heralded as aligning the rules with Article 8 case law.

The contended policy vacuum is also seen as a “democratic deficit” which the new rules will meet by setting out the government’s position on proportionality and, in turn, by seeking Parliament’s approval of ministerial policy. The government is keen to show that the changes will promote consistent and fair decision making by striking the right balance between individual rights and the public interest. Therefore, save in the most exceptional circumstances, decisions in accordance with the rules will be compatible with Article 8.

Apparently, the courts will not be ousted completely and their role will shift from reviewing the proportionality of individual administrative decisions to reviewing the proportionality of the rules.

From this perspective, the point of departure for reviewing the rules will be that Parliament has already decided on how the balance should be struck and its view should be given the deference that is due to a democratic legislature. The rather chilling conclusion is that the proposed general level of proportionality incorporated within the new rules will preclude/exclude the need to determine or examine proportionality in individual cases.

Presently, proportionality is assessed in individual cases by applying the following test:

(1)  Will the proposed removal be an interference by a public authority with the exercise of the applicant’s right to respect for his private or (as the case may be) family life?

(2)  If so, will such interference have consequences of such gravity as potentially to engage the operation of Article 8?

(3)  If so, is such interference in accordance with the law?

(4)  If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others?

(5)  If so, is such interference proportionate to the legitimate public end sought to be achieved?

The late Lord Bingham’s famous Razgar [2004] UKHL 27 questions are binding in ascertaining proportionality and will, no doubt, remain so even after 9 July 2012. From that perspective, it is arguable that not much has changed. But unfortunately things will change quite a lot. (Please see below.)

Children’s Best Interests

Appendix FM aims to reflect the duty on the SSHD under section 55 of the Borders Citizenship and Immigration Act 2009 which requires that in making immigration decisions, the welfare of children who are in the UK is safeguarded and promoted. The government has explained that “the assessment of the ‘best interests of the child’ is intrinsic to the proportionality assessment under Article 8, and has therefore also been incorporated into the Immigration Rules.”

In assessing the best interests of the child, the question is whether it is reasonable to expect the child to live in another country and the “new Immigration Rules set out a clear framework for weighing the best interests of the child against the wider public interest in removal cases.” It is clarified that the best interests of the child will normally be met by remaining with their parents and returning with them to the country of origin, subject to considerations such as long residence in the UK and exceptional factors. The length of residence, subject to countervailing factors, is prescribed as at least the last seven years.

Private life

The 14-year rule contained in paragraph 276B(i)(b), which provides a route to settlement on the grounds of lawful or unlawful long residence will be withdrawn. Alternatively, a new 276ADE provides that at least 20 years’ continuous residence (lawful or unlawful), will – subject to criminality and other English language, character and national security criteria – normally be necessary to establish a claim for leave to remain in the UK on the basis of the Article 8 right to respect for private life.

However, the 10-year rule set out in paragraph 276B(i)(a), which provides a route to settlement on the grounds of continuous lawful residence in the UK of at least 10 years, will not be amended. There will also be new provisions which allow applicants to be granted leave on the basis of private life after seven years’ continuous residence if they are (i) under the age of 18; or (ii) if they have spent at least half of their life in the UK if they are aged between 18 and 24; or (iii) if they have less than 20 years’ continuous residence in the UK but have no ties (including social, cultural or family) with their country of origin. Applicants who qualify will enter a 10-year route to settlement which will be spread out as four grants of 30 months’ leave to remain and a fifth grant of indefinite leave to remain. Applicants on the “10-year private life route”, who have overstayed by more than 28 days and want to apply for further leave or indefinite leave to remain will be judged as having “broken their continuous leave and will have to start the route again if they continue to qualify”.

Criteria on criminality

The new rules envisage setting out “clear criteria” in relation to applicants’ criminality. Criminality criteria, which will be used to refuse applications under the new family (5 or 10 year) and 10-year private life routes, will be incorporated in the Immigration Rules. Moreover, private or family life (including children’s best interests) will only exceptionally outweigh criminality and the public interest and – where they have been sentenced to a custodial sentence of at least four years – foreign national criminals will be deported.

Furthermore, deportation will normally be considered proportionate where the foreign national criminal has received a custodial sentence of at least 12 months and less than four years’ imprisonment, or where the foreign national criminal has received a custodial sentence of less than 12 months’ imprisonment and, it is the SSHD’s view, that his offending has caused serious harm or he is a persistent re-offender who shows a particular disregard for the law.

However, deportation will not be proportionate where someone has a genuine and subsisting relationship with a UK partner (a British citizen or someone settled here or a person with refugee leave or humanitarian protection), and they have lived here lawfully 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.

Alternatively, deportation will not be appropriate where someone has a “genuine” and subsisting parental relationship with a British citizen child, or a foreign national child who has lived in the UK continuously for at least the last seven years, and it would be unreasonable to expect the child to leave the UK, and there is no other family member who is able to care for the child in the UK.

Equally, deportation will not be proportionate where a person has resided in the UK continuously for (at least) the last 20 years, or an applicant is aged under 25 years and has spent at least half of his life residing continuously in the UK (in either case, excluding any period of imprisonment), and they have no ties (including social, cultural or family) with their country of origin.

Family members of British citizens and settled persons

 The following changes will be made through Appendix FM:

  • A minimum income threshold of £18,600 for those who wish to sponsor the settlement of a partner of non-European Economic Area nationality in the UK.
  • A higher threshold will be required for sponsoring any dependent child under the age of 18 in addition to the partner: £22,400 (£18,600 + £3,800) for one child and an additional £2,400 for each further child sponsored until the migrant parent qualifies for settlement.
  • Making clear that a relationship with a partner must be genuine and subsisting. To this end, the UK Border Agency will be publishing new casework guidance setting out objective factors associated with genuine and non-genuine relationships, to help caseworkers focus on these issues in implementing the new rules.
  • Increasing the minimum probationary period from two years to five years before the migrant partner can apply for settlement.
  • Abolishing the scope for immediate settlement for the migrant partner where a couple have been living together overseas for at least four years. They will need to complete a five-year probationary period for settlement.
  • Adult dependent relatives, under rule 317, will only be able to apply to settle in the UK from overseas and will have to demonstrate that, as a result of age, illness or disability, they require a level of personal care that can only be provided in the UK by the relative here and without recourse to public funds. Uncles and aunts will no longer be able to apply under this route. Moreover:
  1. The applicant must, as a result of age, illness or disability, require long-   term          personal care: that is help performing everyday tasks, e.g. washing, dressing and cooking;
  2. The applicant must be unable, even with the practical and financial help of the sponsor, to obtain the required level of care in the country where they are living because it is not available and there is no person in that country who can reasonably provide it, or because it is not affordable there;
  3. The entry clearance officer must be satisfied that the applicant will be adequately maintained, accommodated and cared for in the UK by the sponsor without recourse to public funds;
  4. The minimum gross income requirements set at £18,600 will not apply to adult dependant relatives and they will qualify for immediate settlement provided that the applicant furnishes an undertaking signed by the sponsor confirming that the applicant will have no recourse to public funds, and that the sponsor will be responsible for their maintenance, accommodation and care without such recourse, for a period of five years from the date the applicant enters the UK.

Persons with limited leave as refugees or beneficiaries of humanitarian protection

People with limited leave in the UK as refugees or those with humanitarian protection who wish to sponsor a post-flight partner and dependent children will continue to do so on an equivalent basis to a settled person under Appendix FM.

In reality this will mean that they will be subject to the new family rules, including the minimum income threshold and the minimum five-year probationary period, highlighted above.

The new criteria for sponsoring adult dependent relatives under Appendix FM will apply to the relatives of refugees and persons with humanitarian protection, but their dependent relatives will continue to get limited leave until the sponsor is granted indefinite leave to remain upon which they can also apply for settlement.

Changes to the rules for PBS dependants

A five-year probationary period for settlement in the UK will apply to the partner of a migrant with leave under the points-based system.

Applications from overstayers

It is claimed that the Immigration Rules are being redesigned to ensuring that a consistent approach is taken in respect persons who seek further leave to remain after their previous period of leave has expired. Therefore, from 9 July 2012 applicants seeking further leave to remain as family members, including settlement, will not be granted leave to remain if they have overstayed their visas by more than 28 days.

Equally, from 1 October 2012 other immigration rules, including those for persons studying and working in the UK, will be placed on a similar footing, and applications from persons who have overstayed by more than 28 days will fall to be refused.

It is suggested that a number of safeguards will be put in place to ensure that the new rules in relation to overstayers are fair and proportionate:

  • Where an applicant submits an application before their previous period of leave to remain expires, the 28-day window in which the application may be submitted as an overstayer will start from the date on which the application was rejected, rather than when leave expired.
  • Caseworkers will continue to have discretion to consider exceptional cases. Applicants who have overstayed by more than 28 days may provide evidence of exceptional circumstances which prevented them from submitting their application in-time.
  • A breach of immigration laws by remaining in the UK beyond a period of leave to enter or remain will not be a determinative factor when considering applications where the applicant:
  1. Has a dependent child under the age of 18 years who is a British citizen or who has lived in the UK for at least the preceding seven years, and it would be unreasonable to expect the child to leave the UK; or
  2. Has lived in the UK for more than 20 years; or
  3. Is seeking leave to remain as a victim of domestic violence or as a bereaved partner.

Re-entry ban

Currently migrants who overstay their leave to enter or remain by more than 28 days are subject to a re-entry ban. Where a person subject to a re-entry ban seeks entry clearance or leave to enter, subject to certain exceptions for those seeking entry as family members, they will be refused leave to enter. The length of the ban varies from 1 year to 10 years depending on whether the person departed from the UK at their own expense or at public expense, or whether the person used deception.

According to the government, in cases where people fail to depart from the UK promptly after their leave to enter or remain expires, the re-entry ban can act as a disincentive to depart. Under the changes to the rules the ban will only apply where a migrant overstays by more than 90 days. In order to save expense incurred through enforced removal, the period is being extended to incentivise voluntary departure.

Other changes

From October 2013, in the interests of Britishness, all applicants for settlement will be required to demonstrate a knowledge of language and life in the UK by passing the Life in the UK test which will correspond to a speaking and listening qualification at Common European Framework of Reference level B1 or above.

Finally, in another development, the government also plans to restrict the full right of appeal in relation to refusals of family visit visas. This change will be subject to the passage of the Crime and Courts Bill, which was published on 11 May 2012, by Parliament.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Article 8, Dependants, Immigration Rules, Judges, Proportionality, Settlement and tagged , , , , , . Bookmark the permalink.

7 Responses to Family Migration and Article 8’s New Dress

  1. One Love says:

    So do these new rules in effect bring back the 7 year child concession?

  2. Vimi says:

    Could anyone plse reply One Love’s answer..wud really appreciate if the expert cud do that..

  3. dave says:

    Not quite, the 7 yr concession DP5/96 took into account various factos such as enforcement action already started against the parents and various factors such as history, repetative applications, character etc. This new 7 year suggestion is still under Article 8 and still subject to the criteria in the rules at Appendix FM. (sounds like a radio station!) Sorry I’m stating the obvious.

  4. mkp says:

    The consequences of Alvi [2012] UKSC 33 and laying statements of changes:

    House of Lords Scrutiny Committee, Statement of Changes in Immigration Rules (HC 194):

  5. mkp says:

    MF (Article 8 – new rules) Nigeria [2012] UKUT 00393 (IAC) 31 October 2012

    1. Prior to the new immigration rules (HC 194) introduced on 9 July 2012, cases involving Article 8 ECHR ordinarily required a two-stage assessment: (1) first to assess whether the decision appealed against was in accordance with the immigration rules; (2) second to assess whether the decision was contrary to the appellant’s Article 8 rights.
    2. The new immigration rules set out a number of mandatory requirements relating to claims reliant on Article 8 (“Article 8 claims”) which make clear that if such requirements are not met, the Article 8 claim under the rules must be refused. They also contain related provisions which confer discretion but it is discretion to grant leave in response to an Article 8 claim only if the new mandatory requirements are met.
    3. Whenever the new rules have application judges are obliged to consider whether an appellant can show he meets the relevant requirements (s.86(3)(a) of the Nationality, Immigration and Asylum Act 2002). Where the new rules afford some related discretion, judges are obliged to consider whether that discretion should have been exercised differently (s. 86(3)(6)). However, what judges are doing when they are conducting this exercise is simply applying the rules: the rules are the rules: see paragraph 10 Mahad [2009] UKSC 16. The fact that these rules in part refer expressly to Article 8 or to certain Article 8 concepts is incidental. The fact that as a result of these changes the rules are longer and incorporate some of the vocabulary of Article 8 makes no difference.
    4. Because for most purposes the immigration rules must be given legal effect (see Odelola [2009] UKHL 25), their requirements for applicants making an Article 8 claim to show “exceptional circumstances” or “insurmountable obstacles” are to be understood as legal requirements in the same way as any other mandatory requirements of the rules.
    5. However, the new rules only cover Article 8 claims brought under some, not all, Parts of the Rules and only accommodate certain types of Article 8 claims.
    6. Even if a decision to refuse an Article 8 claim under the new rules is found to be correct, judges must still consider whether the decision is in compliance with a person’s human rights under s.6 of the Human Rights Act ( see s.84(1)(c), (g) and (e) and s.86(2) and (3) of the 2002 Act) and, in automatic deportation cases, whether removal would breach a person’s Convention rights (s.33(2) UK Borders Act 2007). Thus in the context of deportation and removal cases the need for a 2 stage approach in most Article 8 cases remains imperative because the new rules do not encapsulate the guidance given in Maslov v Austria App no.1683/03 [2008] ECHR 546, which has been endorsed by the higher courts.
    7. When considering Article 8 in the context of an appellant who fails under the new rules, it will remain the case, as before, that “exceptional circumstances” is not to be regarded as a legal test and “insurmountable obstacles” is to be regarded as an incorrect criterion.
    8. However, as a result of the introduction of the new rules, consideration by judges of Article 8 outside the rules must be informed by the greater specificity which they give to the importance the Secretary of State attaches to the public interest. For example, the new rules set out thresholds of criminality by reference to terms of imprisonment so that Article 8 private life claims can only succeed if they not only have certain periods of residence but can also show their criminality has fallen below these thresholds.

  6. mkp says:

    MF (Article 8 – new rules) Nigeria [2012] UKUT 00393(IAC)

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