FAMILY IMMIGRATION: THE DEBATE PART TWO

June 29, 2012


In the second of our blogs on the forthcoming changes to UK Family Immigration we intend to focus on the changes which will be made to settlement in the UK for non-EEA nationals. 

In this post we will focus on the more usual type of settlement where applications are generally based on five years continuous residence in the UK.  We will deal with settlement based on long term residency in the UK in a separate post.

 

This is an area which will see several controversial changes as follows:

  • The minimum probationary period before non-EEA spouses and partners living in the UK can apply for settlement will be increased from two years to five years
  • Immediate settlement for migrant spouses and partners of UK nationals where the couple have been living together overseas for at least four years will be abolished. They will need to complete a five-year probationary period in the UK in order to qualify for settlement;
  • From October 2013, all applicants for settlement will be required to pass the Life in the UK test and present an English language speaking and listening qualification at B1 level or above, unless they are exempt.

The Government has stated that these changes are designed to test ‘the genuineness’ of relationships, increase general fairness and that they will ‘ensure that those who settle here are able to participate in British life and are better able to gain employment.’  In her BBC interview with Andrew Marr, when questioned about the new changes the Home Secretary Theresa May stated ‘this is not just about the numbers though in terms of family because we think it is right that somebody who is wanting to bring somebody into the UK to join them as a spouse or a partner should be able to support them financially and should not be bringing them in on the basis that they’re going to be reliant on the state.’  However, it is quite clear that these changes have been introduced with a view to reducing the number of non-EEA migrants who qualify for settlement.

Increased Probationary Periods – Are they justified?

Increasing the probationary period for non-EEA spouses and partners from two to five years may well cause concern and stress for those individuals who have come to live with their UK spouse or partner.  According to the new policy, the non-EEA spouse will have to apply for an initial UK spouse visa, and will then have to submit an extension application after two and a half years.  After the five years have been completed, they will then have to lodge the settlement application.  This means that the individual will have to submit one additional visa application, because under current policy the non-EEA national would be granted a two year spouse visa and could then immediately apply for Indefinite Leave to Remain (ILR).  It is likely that there will be additional costs involved in making the extension application, but individuals who apply for visas can find the process time consuming and stressful regardless. 

The non-EEA spouse will have to wait much longer for the security of knowing that they can live and work indefinitely in the UK and this again could create uncertainty and strain for such individuals.  Finally, since one of the requirements for ILR is continuous residency in the UK, couples will be prevented from working in foreign countries during the five year probationary period.  Additionally, excessive personal absences such as holidays could in the worst case scenario pose difficulties when applying for ILR, so again, the couple may feel unable to travel as much as they would like during the five year period.

According to the Government, abolishing settlement for couples who have lived together outside the UK for four years again is intended to remove the unfairness which exists when ‘a migrant partner who may never have been to the UK or made any tax or National Insurance contribution should get immediate settlement and full access to the welfare system.’  We understand the rationale behind this particular and it does seem reasonable that a couple who wish to make the UK their home should demonstrate commitment to it by living here for a period before they can apply for settlement.

However this does not take into account the fact that, in instances where a UK national has formed a union with a non-EEA migrant, the UK national will likely have already lived in the UK for a considerable period of time in the past and has probably paid taxes and made other contributions.  We also feel that this change is highly unlikely to catch any sham marriages, because a couple who has lived together for four years have already proved the genuineness of their marriage and their commitment to each other.  It would seem more reasonable to lower the duration of the five year probationary period before settlement for couples who have lived together overseas for four years.

Applying for ILR? Brush up your Language Skills…

Theresa May stated that the new requirement for all applicants for settlement to have speaking and listening skills at level B1 CEFR (Common European Framework of Reference) is being introduced ‘so that we know that they’re going to be able to integrate and become part of British society here.’  It is true that encouraging non-EEA migrants to speak the British language may encourage integration and should help migrants to secure employment.   Yet this change does not account for those migrants who may have integrated well into life in the UK, but do not have a strong formal education and have little experience with academic tests.  Examinations of any form are stressful and individuals who should pass may struggle on the day for a number of reasons.  Again, although we appreciate the reason for this change, it seems that it will place further pressure on migrants who are submitting ILR applications.

It is clearly going to become a longer, more testing process for non-EEA migrants to achieve settlement.  We would advise any individuals who will soon qualify for ILR, to ensure that they fully understand the Immigration Rules and policy guidance in this area.  By understanding the changes, there will be less scope to be caught out by the new requirements.

These are our thoughts on the changes to settlement for non-EEA spouses and partners.  What is your view?  Are you unhappy with the changes or do you welcome them?  Leave your comment below…