HIGH COURT OFFERS HOPE TO STRANDED SPOUSES WHO COULD NOT SPONSOR THEIR FAMILIES TO RIMAIN OR JOIN THEM IN THE UK.
Those who have been following developments within the UK immigration law terrain will be aware of the changes in immigration rules that were effected on 09 July 2012 regarding sponsoring
family members to remain or join their spouses who are resident and settled in the United Kingdom. The new immigration rules introduced financial thresholds to be met by the sponsoring spouse in
order for the application to succeed. The financial thresholds are £18,600 per annum, £22,400 if sponsoring a partner and one child
and an additional £2,400 per children if sponsoring more than one child. The Home Office have been very strict and uncompromising in their application of these rules resulting in so many
families being unable to live together.
Some affected families challenged the obvious unfairness of these rules in the High Court in the case of MM & Ors v Secretary of State for the Home
Department  EWHC 1900 (Admin). In his carefully
considered judgement Mr Justice Blake found that these rules are ‘unjustified and disproportionate’ where the sponsor is a refugee or a British citizen. At paragraph 126 Mr Justice Blake
observes as follows:
“…to set the figure significantly higher than even the £13,400 gross annual wage effectively denies young people and many thousands of low-wage earners in full time employment the
ability to be joined by their non-EEA spouses from abroad unless they happen to have wealthy relatives or to have won the lottery. This frustrates the right of refugees and British citizens to live
with their chosen partner and found a family unless such modest earnings could be supplemented by any reasonably substantial savings, third party support or the future earnings or the spouse seeking
admission. The executive can hardly be heard to say that the minimum adult wage is a manifestly inadequate sum to provide a basic standard of living over the subsistence threshold for a household
without dependent children.”
The court observed that the consequences of the rules, which are that a person who is resident and settled in the United Kingdom was given a stark choice either to remain in the United
Kingdom and separated from his family or leave the United Kingdom to join their families outside the United Kingdom, are so excessive in impact as to be beyond a reasonable means of giving effect to
the legitimate aim behind the new rules.
Going by the response of the Home Office, it is clear that the message has been effectively put across to them and they have stated that they will carefully consider that observations made
by the court. Meanwhile the Home Office have indicated that they have paused decision-making on some spouse/partner and child settlement visa and leave to remain applications to enable them to
consider the implications of this judgment. A Home Office spokesperson said:
'Our family changes were brought in to make sure that spouses coming to live in the UK would not become reliant on the taxpayer for financial support and would be able to integrate
effectively. We're pleased that this judgment supports the basis of our approach.
'We are looking closely at the judgment and its likely impact on the minimum income threshold before we decide how to respond. In the meantime, where an applicant does not meet the minimum
income threshold and there is no other reason to refuse it, the application will be put on hold.'
This turn of events has come as a huge relief to several families that were left in limbo by the severity of these rules. We shall wait with bated breath on the Home Office policy reaction
to this judgment.
For now if you have made an application under these rules or your application was refused and you are appealing against the refusal or if you are intending to make an application for a
spouse visa and are worried of the effect of the new rules regarding financial thresholds, you are advised to seek legal advice. Crown & Law Solicitors provide expert advice and representation in
all immigration matters including family applications or appeals.
New Immigration Rules
Coming Into Force on 1st October 2012.
October 2012 if you have overstayed your leave by more than 28 days any application for
further leave will be refused. This change in the Immigration Rules will affect applicants applying for further leave under:
- the points-based system;
- all working and student
- visiting routes;
- long residency routes;
- discharged HM Forces; or
- UK ancestry routes.
that if you have limited leave to remain in the
United Kingdom you must ensure you apply to extend your leave, if needed, in time. If you wish to remain in the UK after the 28 day period you
should leave the UK and reapply for a visa.
rights applications mainly under Article 8 of the European Convention for Human Rights (ECHR) will, however, not be much affected by this rule subject to the changes brought in by new rules on family
members that were introduced on 09 July 2012.
advice please contact CROWN & LAW SOCITORS at firstname.lastname@example.org
or call 01618840055.
Important changes to the Immigration Rules from 9 July 2012
The Home Office has announced further
significant changes to the Immigration Rules
which are due to come into force from 9 July 2012. These changes will mainly affect family members of non-EEA nationals and people without current leave to remain inside the UK.
From 9 July, a fiancé, spouse or partner
who wishes to join a settled person in the UK will have to demonstrate that their spouse or partner in the UK has a gross annual income of at least £18,600. This amount will increase if a child is
being sponsored to enter the UK while the spouse or partner is outside the UK or has not settled in the UK yet. The sponsor must be able to show that they have been working at the required salary
level for at least 6 months prior to the application or that they have earned the required amount in the 12 months prior to the application. Only savings above £16,000 held for at least 6 months can
go towards any shortfall based on a specific calculation. This could be a gift from a third party but not a loan. But third party support will no longer be accepted. Tax credits, child benefit,
housing benefit and council tax benefit will not count towards the financial requirement.
Sponsors in receipt of a type of disability
living allowance or carer’s allowance will not need to meet the new financial requirement but will need to show that their family members can be adequately maintained without recourse to public
If successful, a spouse or partner will be
granted 33 months leave to enter the UK. If an application for further leave to remain is submitted inside the UK before this initial period expires, an additional period of 30 months will be
granted. A spouse or partner will have to complete a 5 year instead of the current 2 year probationary period. Bereaved partners and victims of domestic violence will still be able to apply for
indefinite leave to remain at any stage of the probationary period.
Whereas previously a person
who had lived abroad with their British or settled spouse
or partner could immediately apply for indefinite leave to remain, this will no longer be available. Such a person will need to complete the 5 year probationary period before they can apply for
settlement. If you are settled and have a child outside of the UK who you are solely responsible for, there will be no minimum
income threshold you have to meet but you will still have to show that the child will be maintained without additional
recourse to public funds.
Adult dependent relatives will no longer be
able to apply to remain in the UK permanently if they enter the UK in a different immigration category e.g. a visitor. They will be expected to leave the UK first and apply for entry clearance. Also,
financial dependency will no longer be sufficient for adult dependent relatives to settle with relatives in the UK. They will have to show they require long-term personal care that can only be
provided by their relative in the UK (this will have to be demonstrated with medical evidence) and that they will be maintained without recourse to public funds. There will be no minimum income
threshold in these cases.
A person who has completed 14 years
continuous long residence in the UK will no
longer be able to apply for indefinite leave to remain. People who have completed 10 years lawful residence in the UK will continue to be able to apply for indefinite leave to remain.
The following categories of people without
valid leave to remain in the UK will be
able to apply for leave to remain from inside the UK:
* A person aged over 18 who has spent at
least 20 years living in the UK or who has
no social, cultural or family ties to the country to which they would be
* A child under 18 who has lived in the UK
for at least 7 years.
* A person over 18 and under 25 who has
lived in the UK for at least half of their
* A person in a genuine and subsisting
relationship with a British citizen, settled
person or refugee and where there are insurmountable obstacles to that relationship continuing outside of the UK.
* A parent if they have a genuine and
subsisting parental relationship with a child who is under the age of 18, is British or has lived in the UK for 7 years and where it would not be reasonable to expect the child to leave the
If successful, such people will be granted
a maximum of 30 months (2 ½ years) leave to remain and will be expected to reapply by submitting an application and paying the fee at least three more times before they will be eligible to apply for
indefinite leave to remain once they have accumulated 10 years in the relevant category.
The Home Office will no longer grant a
person discretionary leave to remain which
leads to settlement after 6 years on the basis of family life or private life.
There are also new Rules which will apply
to people who are convicted of criminal
offences in the UK and/or are subject to deportation.
In most cases, the changes will not apply
to people who were granted leave to remain
under the current Rules or if they submit their application before 9 July or already have an application pending. It is therefore important for anyone who is eligible to make these applications to
seek advice before the 09thJuly 2009.
Our consultation fee is £60.
REGULARISING YOUR STAY IN THE UNITED KINGDOM - PART
If you are in the United Kingdom as an overstayer i.e. your leave to remain has
expired but it has not been renewed, it is advisable that you should take steps
to ‘regularise’ your stay in the United Kingdom. When you become an overstayer
you are not able to make any application permissible under the Immigration
Rules. This means that any application you may make will be outside the immigration rules. There are a number of grounds on which applications outside
the immigration rules can be based. In this series we shall look at some of
these grounds and the requirements that you need to meet in order for your
application to be successful. In part I, we shall look at right to family life under article 8 of the ECHR.
ARTICLE 8 OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS (ECHR) – RIGHT TO FAMILY
Article 8 of the ECHR states as
has the right to respect for his private and family life, his home and his
shall be no interference by a public authority with the exercise of this
right except such as is in accordance with the law and is necessary in a
democratic society in the interests of national security, public safety or
the economic well-being of the country, for the prevention of disorder or
crime, for the protection of health or morals, or for the protection of
the rights and freedoms of others.
Any person who is an overstayer can make an application for further leave to remain on the basis that he/she has
established family life in the United Kingdom.
Family life can be established in different ways including the following:
(i) You have a spouse or a partner who has leave to remain or is resident and settled in the United Kingdom. You can either be married or not married but if the
latter you need to provide evidence that you are living together.
(ii) You have a child or children who are resident and settled in the United Kingdom. We shall discuss this in further detail in Part III of this series.
(iii) You have most of your family members who are resident and settled in the in the United Kingdom. These may be parents, sisters, brothers, uncles, aunties, cousins
etc. It is usually helpful if you can show that you do not have any known family members in your home country.
It is important to note that applications outside the immigration rules are highly technical and
it is always important to seek legal advice and representation before making the application.
Crown & Law Solicitors have special expertise in making these applications and we can help you put together a strong application that has a greater chance of success.
Employer related changes to the immigration rules
The following changes to the points based immigration system came into force on 6 April 2012.
The Tier 1 (Post-study work) category, which enables migrants to work in the UK for two years after graduating from a UK institution, closed to new applicants. Any migrant who has existing
permission to work under this category may continue to do so until their leave to remain expires, at which point they must switch to another category or leave the country. Many employers used this
scheme to recruit employees before switching them into the Tier 2 (General) category without having to carry out a resident labour market test. This will no longer be possible.
New post-study arrangements have been introduced enabling qualifying migrants wishing to switch from Tier 4 (General) (the Student category) into the Tier 2 (General) category. The employer will
not need to satisfy the resident labour market test but all other criteria will apply. Applicants must have completed or passed a UK degree, Postgraduate Certificate in Education or Professional
Graduate Diploma of Education, or have completed a minimum of 12 months study towards a UK PhD at a listed or recognised body or one which has a Tier 4 sponsor licence.
A new category, Graduate Entrepreneur, has been introduced. Under this category participating Higher Education Institutions will be able to identify graduates who have developed world class
innovative ideas or entrepreneurial skills and, in doing so, enable them to remain in the UK after their graduation to develop a business for a period of up to 2 years.
- Tier 2 - Skilled workers - Limiting total temporary leave to remain
- Tier 2 migrants who entered the UK after 6 April 2011 will be able to spend a maximum of six years in total in the General, Minister of religion or Sportsperson categories. After leaving the UK,
a period of 12 months must elapse before a migrant will be granted entry clearance to return under the Tier 2 category.
Visitors undertaking permitted paid engagements
At present all migrants entering the UK in the Visitor category, including business visitors, must not work or receive payment whilst in the UK. A new category will enable a small group of
professionals to carry out a paid engagement relating to their particular skill or expertise (permitted activities), staying for up to one month. These include: migrants lecturing, examining students
or participating in chair selection panels; and professional artists, entertainers and sports persons carrying our engagements in relation to their profession.
Maintenance funds (affecting all tiers of the points-based system)
The maintenance funds required by migrants and their dependants are being increased to reflect changes in the costs of living and studying in the UK and will be reviewed annually.