With a change in government in the United Kingdom there has also been a change in the rules with regard to UK immigration. This includes changes to the existing rules regarding applying for a fiancée, partner or marriage visa and other issues relating to family migration. In this article we will look at what to be aware of when making an application for a UK settlement visa and how these changes could potentially affect your application.
The proposed changes to UK immigration rules are expected to be put in place on the 9th July 2012. This mainly refers to people from non EEA/EU countries who are applying to enter or remain in the UK on the basis of their relationship with a British Citizen or lawful permanent resident with no restrictions on their stay. This can apply to a foreign fiancée spouse, civil partner or unmarried partner of either gender.
The main idea behind the changes is that anyone applying to enter or remain in the UK should be supported by their partner and not tax payers. It’s also expected that the new rules will help non-EU applicants find easier to integrate into society. There has also been more protection put in place in order to minimise the risk of abusive and non-genuine relationships.
A key part of any marriage visa application is the ability of the couple to support themselves financially without recourse to public funds. The new set amount for sponsoring a partner with no children is £18,600 (the level at which a couple would not receive income related benefits). If you are sponsoring a foreign fiancée, partner or spouse with one dependent this amounts to a total of £22,400 (£24,800 for two additional children, £27,200 for three etc.) and a minimum income level will be required at every stage of the UK marriage visa application, including further leave to remain (FLRm) and settlement (indefinite leave to remain or ILR) stage.
It should also be noted that the rules regarding marriage visas strictly concern the employment or self-employment of the sponsor or applicant have changed. This strictly refers to work in the United Kingdom and not work overseas. If a couple does not have regular income coming in then cash savings may be taken into consideration. £62,500 is needed for the initial stage of the application and any additional amounts during any leave periods (a “floor” amount of £16,000 plus 2.5 times the shortfall of £18,600) A combination of cash savings and employment income can be used.
The new financial requirements will not apply to children who are British citizens, EEA nationals, or dependants who qualify for indefinite leave to enter the country or under one of the categories defined in Part 8 of the Immigration Rules. The financial requirements also do not apply at the initial settlement application stage with regard to sponsors in receipt of certain types of benefits (specifically Disability Living Allowance, Severe Disablement Allowance, Industrial Injuries Disablement Benefit, Attendance Allowance and Carer’s Allowance).
Employment is defined as a job that a sponsor has had for at least six months (at the appropriate salary level) or if they earned the same amount in the last year prior to the application. If they are returning to the UK from overseas there needs to be a job offer that can be independently verified or alternatively a signed contract of employment. As with work in the UK a sponsor needs to prove they have been earning the required amount in the last six months. Applicant’s employability and earning potential in the UK will no longer be taken into account by the examining UK Border Agency officials when assessing the settlement application.
Sponsors will be asked to provide evidence of continuous employment (at least six months immediately preceding the date of filing the settlement application) so it is important to keep hold of any documentation and be ready to present it when requested. The source of any income must be declared. Third party financial support will no longer be permitted. The reason for this is that it is felt that third party funding is not sustainable and is discouraged. One exception to this is if you have been given an amount of money as a one off gift from a family member. While a gift is acceptable it should not be a loan and it must not be part of continual funding from a parent. What they can do is offer accommodation providing it does not break overcrowding rules.
Another issue that the government is concerned with is defining how genuine a relationship is. This is mainly to prevent marriages of convenience and partially to deter arranged or assisted marriages. The minimum settlement period for this is now five years in order to test whether a relationship is genuine. A genuine relationship has been defined in these changes as a long term relationship that can be proved by evidence. If you are living together then you also have to provide evidence of this as well. A good example of this would be a joint bank account or mortgage agreement.
A non-appropriate relationship is one where it is felt that money was involved (that was not a dowry). This is also the case if the couple are unable to communicate in the same language. The application may also be affected if the sponsor has previously arranged for partners to live in the UK.
A further change that has been made is the abolishment of a right to immediate settlement if a couple has been living together outside the UK for more than four years. It is felt that this rule is unfair to some couples as they will have immediate access to benefits that would not be available to others.
Another key area where the rules have been changed is with regard to right of appeal for family members. While previously people could question a refusal for application on various grounds the proposed changes mean that people will only be able to object on the grounds of human rights or race discrimination abuses. In July 2012 this will apply to uncles, aunts, nephews, nieces or first cousins.
This appeal is especially relevant when discussing applicants with criminal records. It is now felt that only in exceptional circumstances will an applicant be able to avoid deportation on the grounds of family concerns. Exceptional circumstances in these instances refer to being a resident of the UK for more than 20 years or being able to prove a relationship with someone from the UK for more than 7 years. With these new rules any applicant must have no unspent convictions after 10 years in order to achieve settlement.
With any rules there are exceptions. This is especially the case if there are children involved and at this point the best interests of the child are taken into account. This means considering whether it would be best for a child to remain in the UK or return with their parents to their country of origin. This is one of the considerations under Article 8 of the Human Rights Act (Right to Respect for Private and Family Life). This is defined as the right to a private and family life and that there will be no interference in this right by a public authority unless it is felt that it would be in the national interest to do so. With regard to family life Article 8 this means that if someone is at risk of being deported the UK Border Agency will consider the effect this will have on the family when making a final determination of eligibility.
Visa applicants are expected to have a reasonable command of English in order to live and work in the UK. Effective October 2013, anyone applying for indefinite leave to remain (settlement in the UK) will be required to pass an English speaking and listening examination in addition to taking a Life in the UK test.
There are also transitional arrangements to consider. Anyone who has applied before the rule changes that occur on the 9th July 2012 will be subject to the assessment under the old regulations.
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