FAMILY IMMIGRATION: NO LONGER JUST A CASE OF SCORING POINTS…

The new changes to UK Family Immigration came into force on Monday.  We hope that our readers have managed to submit any dependant visa applications where it was practical and possible to do so, and we will continue to offer comment and guidance on the new policies as they begin to take effect.

In our last blog we looked at the changes which will be made to the rules governing settlement in the UK for non-EEA foreign nationals.  We explored whether the extended probationary period before spouses can qualify for settlement and the new minimum English Language requirement which must be demonstrated through passing a test, will create undue pressure on migrants and are unfair changes.

In this blog, we will look at different categories of non-EEA dependants, and explore how some of the changes may affect their applications to join family members living in the UK. 

Points Based System Spouses – What’s Changed?

As we discussed previously, the probationary period before spouses and partners of British nationals or settled persons can apply for settlement has now been extended from two years to a minimum of five years.  This requires non-EEA partners to apply for a second grant of leave after the initial UK spouse visa application, and they can only apply for Indefinite Leave to Remain (ILR) after five years.

However, it is not only the spouses and partners of British nationals or those already settled here who will be affected by this policy change.  Until the 9th July, spouses and partners of individual working in the UK under the Points Based System (PBS) were able to apply for settlement alongside the main applicant, provided they had been living together in the UK for at least two years.  This meant that a PBS migrant could bring a wife or husband to live in the UK after up to 3 years of living here alone, and both spouses would be able to apply together for ILR once the main assignee completed 5 years of working in the UK on a route to settlement.

The new rules state that partners of PBS migrants must have been in a relationship in the UK with them for at least five years, as well as serving five years on a route to settlement, before they can apply for ILR. 

We are told, again, that the changes are designed to test the genuineness of the relationships between PBS migrants and their dependants.  But what will the practical effect of these changes be and will they really achieve their purported goal?

We believe that this change could potentially result in difficult situations arising for PBS dependants.

Under the new requirements, should a PBS migrant meet a non-EEA individual and bring them to the UK to live, then the spouse or partner will not be able to apply for ILR until they have lived with the PBS migrant in the UK for five years, regardless of the date on which the main applicant becomes eligible. 

It is common for PBS migrants to set up a life and employment in the UK, and then return home for visits with the purpose of finding a suitable partner.  We believe that the previous two year probationary period was sufficient for demonstrating that a couple have a genuine intention to stay married and living together in the UK.  It seems harsh that individuals who have travelled to set up a new life here will now have to wait an additional three years before they can have permanent residency rights, when their spouse may have secured permanent residency years earlier.

Additionally, it is less expensive and far more convenient for PBS migrants and their dependants to make settlement applications at the same time.  If this is no longer possible, couples will be forced to go through the visa application process twice when each individual becomes eligible.  Applying for ILR is costly, time consuming and means that holidays have to be cancelled and all travel put on hold until the applicant’s passport is returned.

We understand that the requirements for PBS dependants and non-PBS should be to a large extent the same, and it has been decided that a uniform approach of five years probationary period for all dependants must apply.  But as with non-PBS dependants, we feel that this change does not take into account the stress and other issues it will raise for dependants who are affected, and is more an exercise designed to reduce numbers rather than intercept sham marriages.

Bringing your Elderly Dependents to Live in the UK

The requirements for when a non-EEA national can sponsor an adult dependant relative to settle in the UK have always been very strict.  However, the recent changes will again make it even harder to successfully apply through this route.

We are told in the Statement of Intent released by the Home Office prior to these changes; ‘The new Immigration Rules will change the basis on which non-EEA adult dependent relatives can settle in the UK, in view of the significant NHS and social care costs to which these cases can give rise.’

The new rules for this immigration category can be summarised as follows:

  • Applicants will no longer be able to switch into this category in the UK.  Any persons in the UK on family visitor visas, which can be valid for up to six months, will need to return home and apply for settlement from overseas.
  • The route will be limited to close family aged 18 or over only; parents, grandparents, sons, daughters, brothers and sisters.  Uncles and aunts will be excluded from applying.
  • Settlement in the UK for parents and grandparents aged 65 or over who are financially dependent on a relative here will now be ended.
  • Non-EEA adult dependent relatives will only be able to settle in the UK if they can 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 here and without recourse to public funds.

Further detail is provided by the UKBA, which highlights how extreme cases will now have to be if they are to meet the criteria:

  • 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;
  • 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.
  • 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.

The dependant relative will need to submit extensive supporting documents to prove the above criteria, such as medical evidence relating to their physical or mental condition and statements in the form of letters from a local authority or healthcare professional that the required level of care is not available in the country where the applicant lives.

It is very evident from reading the new requirements that only the most serious cases will be granted permission to settle in the UK.  But is this fair?

The old Rules already required persons settled in the UK to prove that they would adequately accommodate and maintain any elderly dependents who they intend to sponsor.  It was also necessary to prove that the adult dependant had no other close relatives in their home country to turn to for financial support.

The new rules clearly have the potential to leave stranded those who do not quite fit the strict medical criteria, but who do struggle to care for themselves.  An individual who is not in full health may be capable of washing and dressing independently but fail with more strenuous activities such as cooking and shopping.  Does this mean that they fall short of the UKBA’s criteria because they are not completely incapacitated?

It is quite common for elderly relatives to find themselves alone with no spouse or partner, and children who have emigrated elsewhere.  These individuals may not be sick but, again, may not be capable of running a household completely independently either and they may feel isolated and lonely.  In such cases, since the Rules already require that these dependants will not become a burden on the British taxpayer, is it really just to deprive them of the right to live comfortably with their families in the UK?

There will likely be challenges in the courts in cases where an adult dependant relative is refused a visa because he or she does not quite meet the requirements, but does need care and support from family members settled in the UK.  We feel that this particular rule change is unduly harsh, and will be interested to see the outcome of any legal challenges.

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