Home Office Statement - Grounds of Compatibility with Article 8 ECHU

Micawber · Jun 13, 2012

Statement by the Home Office

Kuya · Jun 13, 2012

My word that is choppy...

And it will be a long and nasty fight, and as I had mentioned weeks ago the Tories are firstly trying to step on the courts before this goes before a Judge..

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 and at Appendix E which sets them out in table form. The key date is 9 July 2012. We ignore it at our peril.

Don’t shoot the messenger:

Article 8 & Family Life (paras.27-53)

Worryingly, the Statement repeats Theresa May’s recent media pronouncements that the approach taken by the UKBA and the courts has ‘…detracted from clear, consistent, predictable and transparent decision-making’ (para. 30) and that ‘…new Immigration Rules will unify consideration under the Rules and Article 8, by defining the basis on which a person can enter or remain in their private and family life’ (para 31). Enshrined in the new rules will be the Government’s view of the public interest, how ‘the balance should be struck between the right to respect for private and family life and the public interest safeguarding the economic well-being of the UK…’ (para.33).

The Statement then talks of the ‘...public policy vacuum’ left in the wake of Courts who ‘…cannot give due weight systematically to the Government’s and Parliament’s view of where the balance should be struck, because they do not know what that view is’ (para.37). The ‘vacuum’ will be filled by rules setting out the Secretary of State’s view. It says that ‘…proportionate rules will make for decisions compatible with Article 8’ (para.38). And there was me worrying. Wait. ‘Where the rules have explicitly taken into account proportionality, the role of the Courts should shift from reviewing the proportionality of individual administrative decisions to reviewing the proportionality of the rules’ (para.39) ‘...The starting point of such a review will be that Parliament has decided how the balance should be struck. Although Parliament’s view is subject to review by the Courts, it should be accorded deference due to a democratic legislature…’ (And I’m not making this up) ‘…If proportionality has already been demonstrated at a general level, it need not, and should not, be re-determined in every individual case’. (para.39).

If the requirements of these new Article 8 Immigration Rules are met, then the applicant will be able to reach settlement in 5 years (the so-called 5 year family route) (para.14).

Discretionary Leave will no longer be granted under Article 8 if the person does not meet the requirements of the rules (para.44). Instead, the person can apply for leave on a ’10 year route to settlement’ (para 45) permitted a grant of indefinite leave to remain after 10 years in line with the current paragraph 276B(i)(a) of the rules (para.46).

Children (paras.54-57)

The family Immigration Rules will set out a ‘…clear framework for weighing the best interests of the child against the wider public interest in removal cases’ (para.55). The ‘key test for a non-British citizen child remaining on a permanent basis is the length of residence in the UK of the child – which the Immigration Rules will set at at least the last 7 years.’ (para.57).

Article 8 and Private Life (paras.58-64)

Whilst the 10 year rule will remain, the 14 year rule is to be abolished (para.58). The Immigration Rules will provide that, for leave to remain on the basis of private life in the UK, the applicant must: have resided continuously in the UK for at least 20 years (discounting any period of imprisonment); or be under the age of 18 years and have resided continuously in the UK for at least seven years; or be aged 18 years or above but under 25 years and have spent at least half their life residing continuously in the UK; or be aged 18 years or above, have resided continuously in the UK for less than 20 years but have no social, cultural or family ties with their country of origin (para.60).

New Financial Requirements (paras.70-89)

Poor people to be prevented from marrying? Very possibly. For a British citizen or settled person to settle a non-EU fiancé(e), civil partner, spouse, unmarried partner etc the Rules will set a minimum gross annual income threshold of £18,600 There will be a higher threshold to sponsor a child under the age of 18 before the partner reaches settlement: £22,400 for one child in addition to the partner and an additional £2,400 for each further child. The relevant minimum income level will apply at every application stage: entry clearance/leave to remain, further leave to remain and indefinite leave to remain (settlement) (para.74). This will replace the existing maintenance requirements under the current rules as reflected in cases such as KA(Pakistan) but it will not affect PBS workers or students wishing to bring their partner to the United Kingdom (paras.75 to77).

There will be no discretion or flexibility with regard to the level of the financial requirement and no account will be taken of any past or prospective employment/earnings of the migrant applicant; and promises of financial support from third parties will not be accepted, although gifts are prima facie acceptable as is the provision of accommodation (para.83). The higher financial requirement will continue to apply until the migrant partner achieves settlement on the 5 year family route (para.88).

Genuineness of Relationship & the New Probationary Period (paras.96-108)

There will be guidance published on how entry clearance officers and other caseworkers ‘..make informed, consistent decisions based on evidence’. The examples given of the factors that will be included in the guidance are – dare I say it – rather obvious and ones which an applicant’s representatives have always had in mind (if not ECOs themselves).

The probationary period will be extended from 2 years to a minimum of 5 years before partners can apply for settlement on the family route. This requirement will extend to partners of PBS migrants who must show that they have been in a relationship with them in the UK for 5 years as well as serving the 5 years on route to settlement (paras.105-106).

Bereaved partners and victims of domestic violence will continue to be eligible for immediate access to indefinite leave to remain (paras.107-108).

Settlement (paras. 109-125)

Couples who have lived outside the UK for 4 years or more will still have to complete the 5 year probationary period (para.110).

For couples in the United Kingdom, the Immigration Rules will require that, subject to reasonable periods of separation, that they can show at every stage that they intend to live together permanently in the UK (paras. 111-112). From October 2013, all applicants for settlement will have to pass the Life in the UK Test and obtain an English Language qualification in speaking and listening (Level B1) (paras.114-115). For Adult Dependent Relatives, there will be no switching into the settlement category (para.118-119) and will be limited to parents, grandparents, sons, daughters, brothers and sisters (para.120). Purportedly reflecting the ‘..intended thrust of the current rules’ (para.123), those parents or grandparents aged 65 or over will now have to demonstrate that ‘..as a result of age, illness or disability, they require a level of long-term personal care that can only be provided in the UK by their relative and without recourse to public funds’ (para.121). The sponsor will not have to meet the new financial threshold of £18,600.
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Taken from Free Movement, an online blog focussing on immigration from a legal perspective.

missusmakulit · Jun 21, 2012

FOR A MOMENT I THOUGHT my knowledge on understanding ENGLISH has gone down the drain!! THAT IS LOADS TO TAKE IN! and UNFAIR to those who are going to apply for their VISA! am so lucky i got mine!

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Home Office Statement - Grounds of Compatibility with Article 8 ECHU

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