On 09.07.2012, the Home Office introduced new Rules relating to the following “family” related categories:
- Children of parents with limited leave as a partner;
- Parent of a child in the UK;
- Bereaved Partners
- Victims of Domestic Violence
- Adult Dependent Relatives.
At Richmond Chambers Immigration Barristers, we are aware from the experience of our clients that it is increasingly difficult for many family immigration applicants to satisfy the UKBA Rules as a result of these changes.
For example, for partners of British spouses to qualify for entry to the UK to settle, or for “leave to remain” in country, in most cases a “financial requirement” of £18,600 per annum gross annual income must be proven, with an additional £3,800 extra for a first child and £2,400 for each subsequent child. Savings above £16,000 or other “specified” income can be aggregated with these amounts in order to meet the financial requirements of the new Rules.
Amongst other conditions, partners are also required to meet an English language requirement. There are several possible ways to meet this requirement, however it should be noted that further changes are due to be introduced in October 2013 which will raise the level of English required to meet this condition (to “CEFR Level B1”) and will also make passing the “Knowledge of Life in the UK Test” a mandatory requirement for applicants in this category. Overall, the entry and leave requirements for the “partner” category continue to become more and more demanding over time.
The provisions are complex to apply in practice, and because of this, we suggest that you obtain professional legal advice before proceeding with an application for entry clearance or leave to remain as a partner.
Children of Parents
On 09.07.2012, new Rules were also applied to children of parents with limited leave as a partner. In these cases, the “financial requirement” (see above) is also required to be met before the child can travel to the UK or be granted leave if already here.
Additional requirements are that the child must be under the age of 18 and not leading an independent life. It also has to be shown that the child can be accommodated with his parents. The parent the child wishes to join must either be with their partner who is also the parent of the child, or the parent must be able to show that they have had “sole responsibility for the child’s upbringing” or that “serious and compelling family or other considerations apply”, which would make “exclusion of the child undesirable”.
Again, these can be difficult requirements to satisfy and we recommend that you obtain advice if you need to make such an application on behalf of a child.
Parent of a Child
If you are the parent of a child in the UK and you want to apply for “entry clearance” to come and settle with them here, there are new requirements for you to meet following the changes in the Rules.
Your child must be under the age of 18 years, and either be a British Citizen living in the UK, or have “settled status” here. The Rules provide that either you must have “sole responsibility” for the child, or the parent they normally live with must not be your partner, and they must be either a British Citizen or settled in the UK.
If you do not have “sole responsibility” for the child, you must be able to show you have the right to see the child, and that you “are taking, and intend to continue to take, an active role in the child’s upbringing”. This may be a difficult requirement to satisfy if you have been separated from your child for some time by force of circumstances, since it is insufficient to show the intention to take an active role in the child’s upbringing in the future under the new Rules, and taking an active role in the past also has to be proven.
You do not have to meet the strict £18,600 financial requirement (see the “partner” category above) but you do have to be able to show that you will be “able to adequately maintain and accommodate” yourself (and any dependents) in the UK “without recourse to public funds” i.e. without having to claim welfare benefits. There is also an English language requirement to be satisfied for this category.
Applications to come to the UK as the parent of a child settled here are complex, and we recommend that you obtain legal advice before proceeding.
If you and the child concerned are already in the UK, and you want to apply for permission to remain so that you can still be involved in your child’s upbringing, you might be able to make an application for “limited leave to remain” on that basis.
You will have to show that your child is under eighteen years of age, and not leading an independent life. They must be living in the UK, and either be a British Citizen or “settled” here. If they cannot meet these requirements, you might still be able to remain with them under another provision of the new Rules (“Appendix FM”) if they have “lived in the UK continuously for at least the seven years immediately preceding the date of application” (Paragraph EX.1).
In such cases, i.e. where Paragraph EX.1 is applied, you would not then have to meet the financial requirement of proving income above £18,600 per annum, but would still need to show that you could “adequately maintain and accommodate” yourself and any dependents in the UK. Unfortunately, Paragraph EX.1 cannot be applied to “entry clearance” cases from outside the UK, and is of limited benefit for that reason. It should also be noted that if an application is allowed under the “exception” paragraph, it will take the applicant ten years instead of five years to qualify for settlement.
Adult Dependent Relatives
Under the new family Rules (“Appendix FM”) it is much harder for “adult dependent relatives” to qualify to enter the UK to live with family members that they depend on. One reason for this is that it is no longer possible for adult dependent relatives to apply from within the UK in this category if they are already here with some other form of leave, and applicants must instead apply for “entry clearance” at the relevant British post overseas.
There are rigorous requirements that these applicants need to satisfy in order to gain entry to the UK. They must be over the age of 18, and either be a parent, grandparent, brother or sister, or son or daughter of the sponsor in the UK. It should be noted that if the applicant is a parent or grandparent of the sponsor, they are not eligible to apply if they have their own partner, unless they can show that their partner is also the parent or grandparent of the UK sponsor, and is also applying for entry.
The person wishing to sponsor the applicant’s entry must either be a British Citizen, have settlement in the UK (“ILR”) or be a refugee or person with humanitarian protection who has not yet obtained settlement.
It is particularly difficult for applicants to satisfy the new Rule (“Appendix FM”) that the applicant “must as a result of age, illness or disability require long-term personal care to perform everyday tasks”.
Evidence of such incapacity has to be submitted with the application, and it also has to be shown that the applicant cannot “obtain the required level of care in the country where they are living”, “even with the practical and financial help of the sponsor”.
The applicant would have to prove that they could not obtain this help, either because it is not “available” or because it is not “affordable”. These are hard requirements to satisfy, because if the sponsor in the UK can be shown to have the money to pay for such care, and that type of care can be bought for the applicant in their home country, they will not be able to satisfy the Rules.
Applicants under the new “adult dependent relative” category do not have to meet the new “financial requirement” (i.e. sponsor income of £18,600 per annum) provided that they can show that they “can be adequately maintained, accommodated and cared for in the UK by the sponsor without recourse to public funds”. In most cases, the sponsor will be required to give a formal undertaking that they will provide care, maintenance and accommodation for the applicant for the five years after date of entry, if the application is granted.
It is clear that these requirements are very difficult to satisfy, and we recommend that you obtain professional advice prior to making such an application in order to improve prospects of success.
What if you cannot satisfy the new family rules and need to make an application?
As referred to above, the Home Office have made provision within “Appendix FM” for applicants who cannot satisfy the new Rules. They have included a section “EX.1” which is meant to cover such cases.
The section provides that if the applicant “has a genuine and subsisting parental relationship with a child” and that child is under the age of 18 and resident in the UK, being either a British Citizen or living in the UK for the seven years before the date of the application and it would “not be reasonable to expect the child to leave the UK”, that an exception to the Rules may be made on that basis, and leave granted even to those who cannot otherwise meet the requirements of Appendix FM.
However, it should be noted that if “EX.1” is applied, it will take the applicant 10 years rather than five years to achieve settlement by this route.
Partners who do not meet the strict requirements of Appendix FM may be able to rely on Paragraph EX.1 if they can show that they have a “genuine and subsisting relationship” with a person who is a British Citizen/settled in the UK, or here with refugee or humanitarian leave, before they achieve settlement. However, the Rule states they need to be able to show that there are “insurmountable obstacles to family life with that partner continuing outside the UK” in order to meet the Home Office requirements. (This interpretation is open to challenge, see below).
Recent legal challenges
“Appendix FM” was introduced by the Home Office with the stated intention that the Rules themselves were structured in such a way that when implemented they would make adequate provision for consideration and fulfilment of the UK’s obligations with regard to Article 8 of the European Convention on Human Rights and that it was not therefore necessary to carry out any further assessment of the facts of a case or the “proportionality” of the balance between the interests of the applicant and the interests of the Home Office, other than to apply the provisions of Appendix FM themselves.
In the six months since “Appendix FM” came into effect, there have been 2 significant cases with regard to this issue. In neither case was the Home Office position accepted, and it has been held to be necessary to continue to consider existing casel aw principles with regard to Article 8 assessments for each individual case, in addition to application of the Rules themselves.
Firstly, in the case of MF (Article 8 – new rules) Nigeria  UKUT 00393 (IAC) it was held by the Tribunal that it is insufficient for cases involving Article 8 issues (i.e. respect for family and private life) to be decided solely on the basis of the rules in Appendix FM. There must in addition be a full proportionality assessment carried out regarding the facts of the case and all relevant issues must be taken into account during that process. If such a full consideration is not carried out, the UK will be in breach of its obligations with regard to Article 8.
Secondly, in the case of Izuazu (Article 8 – new rules)  UKUT 00045 (IAC) it was confirmed by the Court that the new rules under “Appendix FM” were not sufficient in themselves to satisfy the UK’s obligations under Article 8. The Rules had to be taken into account, but the established case law is also relevant and must form part of the assessment.
In this case, the Court expressly rejected the “insurmountable obstacles” test which has been included in Paragraph EX.1 as a requirement a partner must satisfy if EX.1 is to be applied, i.e. that there would be “insurmountable obstacles” to the partners pursuing family life together if the applicant partner were not allowed to remain in the UK.
The Court did not consider the “insurmountable obstacles” requirement to be consistent with existing Article 8 case law. Instead, they identified the “degree of difficulty” the couple would face (e.g. in relocation) as being the proper issue to focus on in the Article 8 assessment.
Concerns were also expressed by the Court that:
“We share the concerns of the Tribunal in MF that provisions of the Appendix FM do not appear to reflect the principle, that a primary consideration in immigration decision making is the welfare and best interests of the child”
This point regarding cases concerning children was also revisited in the most recent case of Ogundimu (Article – 8 – new rules) Nigeria  UKUT 60 (IAC) where it was also stated that the Home Office duty to carry out an Article 8 assessment in each case could not be satisfied by the new Rules alone but would also require existing case law concerning Article 8 to be taken into account in children’s and young person’s cases.
We prepare all our applications carefully to reflect the complexity of the Rules themselves, but also giving due consideration to the existing case law in relation to each application, having regard to Article 8 in the broadest sense now confirmed by the Courts to be the appropriate approach. If we can assist you in any way with these issues, please contact our immigration barristers in Covent Garden, London on 0203 617 9173 or by email email@example.com.