Last Wednesday (July 13 2011) the Immigration Minister Damian Green announced the latest of the United Kingdom Border Agency’s public consultations. This time the focus is upon “family migration” – in other words people who have leave to remain in the UK being joined by their family members.
Following swiftly behind the consultation on settlement in the UK this is the UKBA’s next move to implement the recommendations contained in the Migration Advisory Committee (MAC)’s report from last November entitled "Limits on Migration: Limits on Tier 1 and Tier 2 for 2011/12 and supporting policies."
As we noted on this site – the upshot of the MAC’s report was that the coalition government’s intention to reduce net annual migration to the UK to “the tens of thousands” could not be achieved by imposing limits on economic migration alone. There would have to be consideration of the family immigration routes and those of people coming to study in the UK.
The MAC however pointed out that restrictions on the rights of families to live together in the UK would inevitably be difficult given the UK’s commitment to the European Convention on Human Rights (ECHR) and to Article 8 of that Convention, which provides for the protection of the right to respect for family life.
Hence in the wake of the caps on the General subcategories of Tier 1 and Tier 2 of the Points Based System (the Tier 1 cap is now otiose following the closure of entry clearance applications since April of 2011), the restructuring of the remaining categories of Tiers 1 and 2 and of Tier 4, and June 2011’s sweeping consultation in respect of the settlement provisions of the Immigration Rules – we now have the immigration of family members in the government’s sights.
However in the ministerial statement accompanying the consultation it is stated that while it would be desirable if the proposals set out in the consultation had the effect of reducing migration into the UK this is not their purpose. Instead they are aimed at tackling “abuse”.
This is why there is much emphasis upon “sham” marriages, and the steps which the UKBA proposes to deal with this phenomenon. According to the minister these may include building on the work currently being carried out jointly between the UKBA and the people authorised to conduct marriages in the UK, i.e. General Register Offices across the UK, local registration services and the Anglican Church.
This has an echo of the previous “certificate of approval” scheme brought in in 2006, which failed in the light of protracted litigation, all of which the Agency lost, and which culminated in the abolition of the scheme from 9 May 2011. The legislation was found by successive decisions of the senior courts to conflict with the right to marry provided by Article 12 of the ECHR.
Rather than, as before, requiring anyone who wanted to get married to obtain a certificate of approval from the UKBA and then to give it to the registrar – this cumbersome procedure can instead be replaced by simply making the registrar himself or herself an immigration officer. This rather surprising suggestion is explained as follows in the consultation document:
“The aim is not as a matter of course to enable registrars to carry out the functions of an immigration officer and vice versa. Instead, we will explore the scope, subject to legislation, to provide for a designated category of officer in England and Wales who is able to carry out both functions in the specific environment of a register office. Such staff could be targeted at suspected hotspots for sham marriages and to individual cases where intelligence indicated links to other significant criminality. We do not believe that it is the role of the local registration service to enforce the immigration laws: that is a matter for the UK Border Agency. It is however the role of the registrar to help combat sham marriage and intervene where a sham marriage is suspected. By using an officer trained and empowered to act in both areas, our ability to tackle sham marriages could be increased. We would welcome views from local authorities and others on this proposal.”
(The document does not say whether there are similar plans for legislation to enable UKBA staff to perform a similar role in the premises of the Anglican Church).
A further or alternative proposal is that where a couple register an intention to get married with the appropriate civil authority the current obligation for registrars to continue with the marriage unless any impediment is shown is lifted "where a sham marriage is suspected” - so that the marriage is deferred while the UKBA investigates.
The consultation document makes it clear that the UKBA is particularly concerned with marriages between nationals of the countries comprising the European Economic Area (EEA) and people who are from outside the EEA. This concern is acute in the light of the UKBA’s having recently had to modify the Immigration (European Economic Area) Regulations in the light of the Court of Justice of the European Union’s ruling in Metock v Minister for Justice, Equality and Law Reform (Ireland) Case C – 127/08, [2009] QB 318.
Attention is also to be given for widening the concept of a genuine and subsisting marriage for the purposes of the Immigration Rules.
In its consultation document the UKBA has indicated that it is interested in the kind of test which it says is applied by the immigration authorities in Denmark when considering whether to grant or to refuse an application from a spouse for a visa to stay in or to enter the country.
In Denmark unless one party to a marriage is a Danish citizen, where somebody is seeking a visa to come to or to continue to live in Denmark on the basis of marriage, the couple must satisfy the authorities that their “combined attachment” to Denmark is greater than their combined attachment to any other country.
To meet this test one party to the marriage – the sponsor - must have lived in Denmark for at least 15 years and the party seeking the visa must have visited Denmark at least twice.
Other measures include introducing a minimum income threshold for sponsors of partners and dependants, to ensure that family migrants are adequately supported, and lengthening the “probationary period” after which a spouse or civil partner can apply for indefinite leave to remain from the current 2 year period to 5 years.
At the moment it is only the dependant family members of people who are in the UK under the various Tiers of the Points Based System which permit this who have to meet such a minimum income requirement, which is spelt out in the Immigration Rules.
Those seeking entry as the spouse, child or dependant relative of a British citizen have to show instead that they can be maintained adequately in the UK and without recourse to public funds. A 2006 decision of the Immigration Appeal Tribunal, KA and others (Adequacy of maintenance) Pakistan [2006] UKIAT 0065 defined “adequately” as meaning at a level greater than that at which the family would be expected to live if its members were in receipt of the income support payments to which they would be entitled.
In the consultation document the UKBA suggests this level is too low. It says:
“We think that the level should be higher than that of the safety net of Income Support, which is how the courts have interpreted the current maintenance requirement under the Immigration Rules. It should represent what is needed, in the light of the cost of living in the UK, to support a spouse or partner (and dependants) at a reasonable level that helps to ensure they do not become a burden on the taxpayer and allows sufficient participation in everyday life to facilitate integration. We have asked the Migration Advisory Committee for advice.”
The document lists the income requirements which must be met in 8 other countries, which include the USA, Australia and Denmark. Only 5 of those countries however operate a stipulated minimum income requirement. Neither Denmark nor Australia has one.
Interestingly – although the document does not list this as a specific question – the UKBA states that it will also review:
“whether support from third parties, which is not easy for the UK Border Agency to verify, should be allowed only in compelling and compassionate circumstances."
The entitlement of people who wish to come to the UK as members of the family of someone settled here to rely on contributions from people other than themselves or their spouse to support them and their children has now been established for nearly two years, following the House of Lords’ opinions in Ahmed Mahad (Ethiopa) v Entry Clearance Officer [2009] UKSC 16; [2010] 1 WLR 48. In that judgment it is not suggested that “third parties” should only be allowed to contribute to a person’s maintenance if there are “compelling and compassionate circumstances.” Instead the rationale is that if it can be shown that such support is available the concern that an immigrant could become dependant upon public funds after his or her admission is met.
There are other proposals regarding preventing people who have already sponsored the entry of one person to whom they are married from sponsoring another applicant later on. The UKBA calls such people “serial sponsors.” The consultation document refers to evidence which the UKBA has gathered in support of the existence of such abuse – but warns that it may not be regarded as definitive.
It is also proposed that appeals against refusals of family visit visas (issued to people who wish to visit their family members in the UK) should be abolished apart from appeals in which race relations or issues under the ECHR have been raised. It is the UKBA’s view that such appeals are a waste of taxpayers’ money – since when they succeed it is largely due to the submission of evidence to the Appeal Tribunal which could have been submitted to the UKBA’s overseas post.
These concerns must be considered alongside the often critical reports made by the UKBA’s Chief Inspector regarding the practices at such overseas posts. In a report issued in March of 2011 regarding practices in Amman, Jordan and in Istanbul the Inspector stated:
‘My case file review identified serious concerns about the quality, consistency and fairness of decision making across all categories of visa applications considered in Amman. Additionally, I found it almost impossible to understand some of the reasons for Entry Clearance Officers’ decisions to issue or refuse applications.’
At the end of 2010 the Chief Inspector issued his report regarding the processing of visa applications in Abu Dhabi, which is the “hub” charged with deciding visa applications made for applicants from several countries, including Pakistan. It stated that there was evidence of discriminatory practice in decision making whereby Pakistani nationals were less likely to succeed in their applications:
“6.17 We therefore reviewed our findings from our file sampling and established inconsistent approaches were taken as regards the weight attached to evidence, depending on the nationality of the customer. We found that customers from Gulf Cooperation Council countries, who provided limited evidence to support their applications, were granted entry clearance, whereas customers from Pakistan were also being refused for not providing enough information, even when such evidence was not stipulated as a requirement in the guidance provided by UK Border Agency. For example, Pakistan customers were refused because they had not provided:
- land registry title deeds to properties
- accommodation reports from council housing departments; and
- evidence of family, economic and social ties to Pakistan.
6.18 We are therefore concerned that the UK Border Agency may be discriminating against those customers applying in Pakistan for entry clearance to the UK.”
The most significant area opened up by this consultation is that relating to the substance of the UK’s obligations to families under Article 8 of the ECHR. This section of the consultation document lists each of the areas in which the decisions of the senior courts in recent years have rejected the arguments relied upon by the Home Office.
These include refusing applications on the basis that there are no “insurmountable obstacles” to family life being continued outside the UK. This argument generally succeeded in appeals against a person’s removal being dismissed – until the House of Lords’ judgment in EB (Kosovo) [2008] UKHL 41.
Similarly the government here expresses its concern as to its ability to remove people from the UK where they have children who have been living here following the Supreme Court’s judgment earlier this year in ZH (Tanzania) [2011] UKSC 4.
The document requests respondents to answer 3 questions in this context. The first is in general terms - whether the requirements of the Immigration Rules should reflect a balance between the Article 8 rights of individuals and the wider public interest in controlling immigration. The second and third are more specific – i.e.
i) should the UKBA be allowed to remove foreign nationals who have shown a serious disregard for the UK’s laws who have family members living in the UK? and
ii) should the UKBA be allowed to require a person who does not have leave to remain in the UK and who has established family life with his or her UK based partner or spouse to choose between separation from his or her family member and a life together in the country from which the person came?
Finally it should also be noted that tied in with these proposed limitations on Article 8 rights is the warning that the government is planning to abolish the current Immigration Rule covering long residence – paragraph 276B of the Immigration Rules whereby a person who has been in the UK for 14 years can qualify for indefinite leave to remain unless the public interest overrides this.
These proposals complete the radical overhaul of the entire framework of the UK’s immigration regime which the coalition government has announced, and already partially implemented, since November of 2010.
Inevitably the proposals will directly affect people living in the UK with most forms of leave to remain. Anyone seeking to make plans in light of what is proposed, or who is confused as to their rights both in the short and long term, is strongly encouraged to seek professional legal advice.