New rules on family migration

The changes to the Immigration Rules relating to family migration to the UK came into effect on 9 July 2012. In addition to the obvious tightening of the requirements, immigration lawyers now have to grapple with the infamous FM Appendix, poor drafting and unclear provisions that make it difficult to get a grip on what the changes actually mean.

One of the most annoying features of Appendix FM is the bizarre referencing system the draftsman has invented to substitute simple numbering: instead of 1,2,3 etc we now have E-LTRPT, E-ECPT, D-ILRP… Navigating the new rules can now be compared to following a treasure map blindfolded without a compass. In fact it is only possible with computer search.

Appendix FM contains the new code for family immigration.

Broadly speaking, the new rules introduce the following changes:

• Minimum income requirement of £18,600 to bring in a foreign spouse, an additional £3,800 for the first child and a further £2,400 for each additional child;
• Third party support not allowed in family immigration;
• Extension of the ‘probationary period’ to a period of five years for all family routes that lead to settlement;
• Abolition of immediate settlement for spouses living together outside the UK for four years or more;
• New requirement that adult dependent relatives wishing to come to the UK must require a high level of personal care as a result of age, illness or disability that cannot be met by a carer in their own country;
• New route to residence where a child has been resident in the UK for seven years;
• Abolition of the 14 year long residence rule and replacement with a 20 year residence requirement that leads to settlement after 10 years.

In addition to these changes, the Secretary of State’s understanding of Article 8 right to private and family life is now ‘incorporated’ into the rules. Regarding the question of proportionality, the new rules prescribe thresholds that must be met in order for interference with family life to be regarded as disproportionate. For example, a person whose partner is settled in the UK may qualify for the 10 year family route to settlement if they can show that there are ‘insurmountable obstacles’ to family life outside the UK.

This test sets a threshold much higher than what was deemed appropriate by the Supreme Court in the case of Huang v SSHD [2007] UKHL 11, namely whether there is a ‘reasonable expectation’ of family life continuing outside the UK. The obvious discord between the new rules and established human rights case law will undoubtedly invite challenges of the legality of the rules.