The Home Office – Written evidence (FAM0103)              

 

Summary of family migration law

 

  1. In an immigration context family is a person, their partner (to whom they are married or in a civil or durable partnership) and any children who are under 18 years. Specific definitions are set out in paragraph 6.2 of the Immigration Rules which are available here: https://www.gov.uk/guidance/immigration-rules/immigration-rules-introduction and also provided as an Annex to this submission.

 

  1. In order to qualify for permission to enter or stay in the UK under the family route a person is required to be in an immediate family relationship with a qualifying person. A qualifying person is a person who is either a British citizen, settled in the UK, has pre-settled status under the EU Settlement Scheme, has refugee status, humanitarian protection or limited leave as a worker or business person under Appendix ECAA Extension of Stay.

 

  1. There are exceptions where specific family members only are detailed in a specific route, for example the rules for adult dependent relatives (paragraphs 317-319 of the Immigration Rules), which seek to allow the elderly or infirm relatives of a UK sponsor to enter the UK to be cared for by their family member.

 

  1. Another exception is paragraph 297 in Part 8 of the Immigration Rules. Where a child is applying to enter and settle in the UK, as well as joining a settled parent or parents, the child can apply to join a relative (non-defined) provided there are compelling compassionate reasons which make exclusion of the child from the UK undesirable.

 

  1. In line with wider UK legislation polygamous marriages or civil partnerships are not recognised in an immigration context, nor are children of polygamous relationships able to benefit from the family Immigration Rules. 

 

  1. The Ukraine Family Scheme, which grants temporary leave to those affected by the war in Ukraine, has introduced a new concept of extended family members. This is defined in paragraph UKR6.2 of Appendix Ukraine Scheme to the Immigration Rules.

 

  1. Since their revision on 9 July 2012, the Immigration Rules have contained a framework for considering family applications and also addressing claims where they engage Article 8 of the European Convention on Human Rights (ECHR) (the right to respect for private and family life). Appendix FM and Appendix Private Life to the Immigration Rules provide the basis on which a person can apply for entry clearance to the UK or leave to remain in the UK on family life grounds or permission to stay here on private life grounds.

 

  1. A decision made under the family Immigration Rules will not stipulate any expectation that a family unit should separate. Where a decision refuses an application for leave to enter or remain based on family life this will be based on an assessment as to whether the family can relocate outside the UK together. Whether the family choose to separate is always a matter for them to determine.

 

Fees

 

  1. The application fees are set out online and the current fees are available here: https://www.gov.uk/government/publications/visa-regulations-revised-table/home-office-immigration-and-nationality-fees-6-april-2022. Applicants under the family and private life routes are required to pay the immigration health surcharge.

 

  1. Application fees and the immigration health surcharge may be waived in circumstances where an applicant cannot afford the fee, is destitute or at risk of imminent destitution, or their income is not sufficient to meet their child’s additional needs.

 

  1. The revised in-country fee waiver application process and guidance was published on 30 March 2021. The guidance was updated to include an affordability test, which assists caseworkers in deciding whether an applicant can afford the fee for their application. The onus is on the applicant to credibly demonstrate that they qualify for a fee waiver.

 

  1. The revised overseas fee waiver application process and guidance was published on 16 June 2022. The guidance contains an affordability test, but also considers whether the applicant or their sponsor could reasonably be expected to save for their application fee before coming to the UK.

 

English language

 

  1. To encourage integration, those coming to the UK on a family visa with only basic English are required to become more fluent over time. Partners and parents are required to demonstrate English language speaking and listening skills at a basic level before they can come here under the family route. The lawfulness of this requirement was upheld by the Supreme Court in November 2015. From May 2017, those seeking a visa extension were also required to meet level A2 of the Common European Framework of Reference (CEFR). Those applying to settle permanently must meet level B1 of the CEFR and are required to take the Knowledge of Language and Life in the UK Test. 

Financial requirements

 

  1. Partners under Appendix FM are expected to meet the minimum income Requirement (MIR). This was set in July 2012, following advice from the independent Migration Advisory Committee (MAC), at £18,600 for sponsoring a partner, rising to £22,400 for also sponsoring a non-settled child and an additional £2,400 for each further such child. This reflected the level of income at which a British family or a family settled in the UK generally ceased to be able to access income-related benefits under the old benefit system in 2012.

 

  1. At the time the MAC considered three options to measure the MIR against: a threshold based on levels of pay; a threshold based on the point at which benefits entitlement ceases; or a simplified proxy for fiscal neutrality of migrant households. The decision was taken to set MIR using the benefit threshold figure and this was upheld as lawful at the Supreme Court in February 2017. The MIR has not changed since it was introduced. 

 

  1. For parents, children and adult dependent relatives (under Appendix FM) the applicant, or their sponsor, must demonstrate they can adequately maintain and accommodate the family without access to public funds – this means they have an income at least equivalent to income support / universal credit once housing costs have been taken into account. 

 

  1. For adult dependent relates the sponsor must also show they can care for the applicant without recourse to public funds. 

 

Discretionary assessments

 

  1. As well as setting out these specific requirements to be met by those wishing to settle in the UK with a relative, the family Immigration Rules contain key discretionary elements which require an assessment of any exceptional, compelling or compassionate elements in an application.

 

  1. For example, section EX of Appendix FM requires a grant of leave, even if certain eligibility requirements are not met, providing there are exceptional reasons which mean it would be unduly harsh to expect a partner to leave the UK with an applicant, or it would be unreasonable for a qualifying child to leave. 

 

  1. Where the financial requirement is not met through the specified sources of funds, paragraph GEN.3.1 allows a wider range of financial evidence to be considered where to otherwise refuse could result in unjustifiably harsh consequences for the applicant, their partner or a relevant child

 

  1. Furthermore, all applications under Appendix FM must contain an assessment under paragraph GEN.3.2, which requires the Home Office to consider a person’s ECHR Article 8 rights. Leave will be granted where refusal would result in unjustifiably harsh consequences for the applicant, their partner, a relevant child or another family member where their ECHR Article 8 rights would be affected by a decision to refuse the application. Similarly, paragraph PL 8.1. of Appendix Private Life requires a decision maker to be satisfied that refusal of permission to stay would not breach Article 8 of the ECHR on the basis of private life.

 

  1. These requirements mean that the Immigration Rules are able to reflect the qualified nature of ECHR Article 8, setting requirements which properly balance the individual right to respect for private or family life with the public interest in safeguarding the economic well-being of the UK by controlling immigration, in protecting the public from foreign criminals and in protecting the rights and freedoms of others. The Article 8 tests contained in the rules are based on determinations by the courts, have been tested since and found to be lawful or amended to ensure they are lawful.

 

The Rules also give direct effect to the Secretary of State’s statutory duty to have regard, as a primary consideration, to a child’s best interests in making an immigration decision affecting them. All cases are considered on their individual merits and discretion is applied where it is appropriate.

 

Private life

 

  1. The private life route is for a person wishing to stay in the UK because they have spent a significant period in the UK and built a private life. Private life can be established by a person who has spent time in the UK with or without lawful permission and whilst it is normally a ten-year route to settlement, there are justifiable exceptions.

 

  1. The private life rules allow children and certain young people (who arrived in the UK as children) who qualify for permission to stay on the basis of their private life to settle in the UK after five years with permission. The relevant cohorts are:

                children who have been continuously resident in the UK for seven years and it would not be reasonable for them to leave; or

                a young adult (aged between 18 and under 25) who arrived in the UK as a child and has spent at least half their life in the UK.

 

  1. This ensures that those who came to the UK as children as part of a family unit where their family did not qualify for permission to stay or whose parents did not regularise their immigration status have a reasonable pathway to settlement.

 

  1. If a child meets the requirements of the private life rules and their parent(s) meet the family rules in Appendix FM, the child might meet the requirements under Appendix FM as a dependent child. Where a child qualifies under both Appendix Private Life and Appendix FM, they should be granted under Appendix Private Life as this gives the child the most favourable grant of leave and allows a shorter route to settlement.

 

  1. This may on occasion result in a child being granted a different length of leave and different duration to settlement than their parent(s) or other family members.

 

Leave and conditions

 

  1. Leave is generally granted in periods of 30 months at a time. The family and private life Immigration Rules provide a five or 10 year route to settlement depending on individual circumstances: a five year route, for partners, parents and children who meet all of the relevant suitability and eligibility requirements (including financial, English language and lawful immigration status) at every stage; a 10 year route for partners and parents where it is unreasonable to expect a qualifying child to leave the UK, there are insurmountable obstacles to family life continuing outside of the UK, or there are exceptional circumstances; and a 10 year private life route, for individuals where there are very significant obstacles to integration to a country outside of the UK, or there are exceptional circumstances.

 

  1. Applicants granted under the family and private life routes are given a right to work. By default, applicants are given a condition of no recourse to public funds (NRPF), because in meeting the financial requirement they have shown that they have sufficient income not to rely on access public funds. However, the NRPF condition must be lifted or not imposed if an applicant is destitute or is at risk of imminent destitution, if the welfare of their child is at risk due to their low income, or where there are other exceptional financial circumstances.

 

  1. Migrants can apply, for free, to have their NRPF condition lifted by making a ‘change of conditions’ application.

 

Child welfare

 

  1. The Home Office has a duty to safeguard and promote the welfare of children. This duty is set out in section 55 of the Borders, Citizenship and Immigration Act 2009, together with Article 3 of the UN Convention on the Rights of the Child. Consideration of the child’s best interests must be a primary consideration in immigration decisions affecting them.

 

  1. Where making any decision which may affect the welfare of a child, and in particular where exceptional circumstances under paragraphs GEN.3.1 and GEN.3.2. of Appendix FM, decision makers must take into account, as a primary consideration, the best interests of any ‘relevant child’.

 

  1. A ‘relevant child’ is a child in the UK or overseas, who is under the age of 18 years at the date of application, and who it is evident from the information provided by the applicant would be affected by a decision to refuse the application.

 

  1. The assessment of a child’s best interests requires a consideration of all relevant factors in the particular case. It is also essential that the child is not blamed for any failure by their parent or parents to comply with UK immigration controls. The conduct or immigration history of their non-British citizen parent or parents is relevant to the public interest analysis and must be given due weight in determining the overall proportionality of the decision under ECHR Article 8, but it does not affect the assessment of the child’s best interests or the need for those best interests to be considered as a primary consideration in the Article 8 decision.

 

  1. There are also policy provisions to allow local authorities to apply for permission to stay on behalf of children in their care, free of charge. This provision includes the option of a grant of indefinite leave to remain (ILR) but is primarily focussed on the local authority’s assessment regarding the best interests of the child.

 

Compelling and compassionate factors

 

  1. Where circumstances do not warrant a grant of leave, it is considered whether a grant of leave outside the rules is warranted on compelling compassionate grounds. Compelling compassionate grounds are exceptional circumstances that warrant a period of leave for a non-Article 8 reason. An example might be where an applicant or family member has suffered a bereavement and requests a period of stay to deal with their loss or to make funeral arrangements.

 

  1. When considering compassionate factors, it is unlikely that leave will be granted for a period of 30 months, but instead will be a short period of leave to remain to reflect the individual circumstances of the application. For example, it may be appropriate to grant a period of six months’ leave to enable completion of final examinations.

 

  1. In cases where the applicant may have met the Immigration Rules, but the qualifying reason may have been removed through tragedy (a bereaved partner) or criminal actions of others (victims of domestic abuse) there is provision within the rules to grant early ILR.

 

Bespoke pathways in response to geopolitical and refugee crises 

 

  1. There are many countries across the world suffering from conflict and political instability, and where individuals or groups may be at risk the UK Government puts in place the measures it considers appropriate to support in each case which can include additional flexibility in supporting families.

 

  1. For the Syrian conflict this saw the creation of a quota-limited resettlement programme to enable the most vulnerable to settle here with their immediate family.

 

  1. For the Taliban takeover of Afghanistan this saw the expansion of a route to enable an unlimited number of those who are at risk as a result of their work for or alongside the UK Government to settle here (the Afghan Relocation and Assistance Policy) as well as the creation of a quota-limited resettlement scheme for other vulnerable people and their families (the Afghan Citizens Resettlement Scheme). Additional family members over and above immediate family members can qualify for both schemes if other requirements are met and are considered on a case by case basis.

 

  1. For the Russian invasion of Ukraine this saw the creation of the Ukraine Family Scheme and the Homes for Ukraine Scheme; the latter enables Ukrainian nationals to be accommodated by vetted UK-based sponsors who are not necessarily family members but who have suitable accommodation available. The Ukraine Schemes are temporary relocation schemes instead of resettlement schemes and unlike Appendix FM cases the routes do not lead to settlement (leave is granted for up to three years).

 

  1. The aim of both the Afghan and Ukraine policies for families was to quickly facilitate the evacuation or relocation of those fleeing imminent danger. It was recognised that family members of settled persons may find it difficult to meet the core requirements of the family rules in a short time frame and in traumatic circumstances. For example, saving up for fees or to meet financial requirements or taking the time to learn English and take the relevant test would not be practicable when speed was off the essence and obtaining documents may be difficult. The Home Office did consider whether to simply waive these requirements, but it was felt it would be simpler and quicker for applicants to set up bespoke schemes without such requirements.

 

  1. The Ukraine Family Scheme is a temporary route providing leave for up to three years and is not a route to settlement. This made it possible to be more generous at the initial eligibility stage, as the UK is accepting only a time-limited responsibility for those arriving under this route - as the impacts are short term and accommodation is expected to be provided, in the main, by family members, greater numbers can be accommodated but is not intended to signal a shift in approach to the immigration definition of family across the mainstream family route.

 

  1. As there appears to be no prospect of Afghan nationals who flee the Taliban returning to Afghanistan, they and their family members are granted immediate settlement and therefore stricter eligibility criteria is necessary given the costs to the public purse of such long-term migration.

 

  1. A comparison of the family routes available to current humanitarian schemes is set out in the further information Annex.

 

 

10 October 2022


 

Annex – Further information

 

Definitions in Paragraph 6.2 of the Immigration Rules

 

 

“Child” means a person who is aged under 18 years.

 

“Parent” includes:

(a) the stepfather of a child whose father is dead, and reference to stepfather includes a relationship arising through civil partnership; and

 

(b) the stepmother of a child whose mother is dead, and reference to stepmother includes a relationship arising through civil partnership; and

 

(c) the father, as well as the mother, of an illegitimate child where the person is proved to be the father; and

 

(d) an adoptive parent, where a child was adopted in accordance with a decision taken by the competent administrative authority or court in a country whose adoption orders are recognised by the UK or where a child is the subject of a de facto adoption in accordance with the requirements of paragraph 309A (except that an adopted child or a child who is the subject of a de facto adoption may not make an application for leave to enter or remain in order to accompany, join or remain with an adoptive parent under paragraphs 297 to 303); and

 

(e) in the case of a child born in the UK who is not a British citizen, a person to whom there has been a genuine transfer of parental responsibility on the ground of the original parents’ inability to care for the child

 

“Partner” means a person’s:

(a) spouse; or

 

(b) civil partner; or

 

(c) unmarried partner, where the couple have been living together in a relationship similar to marriage or a civil partnership for at least two years.

 

“Sponsor” and “family sponsor”, in relation to a family member, means the person in relation to whom an applicant is seeking leave to enter or remain as their spouse, fiancé(e), civil partner, proposed civil partner,  unmarried partner, same-sex partner or dependent relative, as the case may be, under paragraphs 277 to 295O or 317 to 319 or the person in relation to whom an applicant is seeking entry clearance or leave as their partner or dependent relative under Appendix FM

 

Extended family members

 

The definition of extended family members in the Ukraine Family Scheme is set out in Appendix Ukraine Scheme of the Immigration Rules.

 

UKR 6.2. Where applying as a family member under UKR 6.1., the applicant must be a family member in one of the following relationships (and, if the applicant is not Ukrainian, at least one of the immediate family members under (a) must be a Ukrainian national as in UKR 7.1.):

(a) an immediate family member meaning the:

(i) partner of the UK-based sponsor; or

(ii) child aged under 18 on the date of application of the UK-based sponsor or of the UK-based sponsor’s partner; or

(iii) parent of a child (who is under 18 on the date of application), where the child is the UK-based sponsor; or

(iv) fiancé(e) or proposed civil partner of the UK-based sponsor; or

 

(b) extended family member, meaning a:

(i) parent of a UK-based sponsor, or of the UK-based sponsor’s partner (where the sponsor or partner is aged 18 or over on the date of application); or

(ii) parent of the UK-based sponsor’s child or of the UK-based sponsor’s partner’s child (where the child is under 18 on the date of application); or

(iii) grandparent of the UK-based sponsor or of the UK-based sponsor’s partner; or

(iv) grandchild of the UK-based sponsor or of the UK-based sponsor’s partner; or

(v) sibling of the UK-based sponsor or of the UK-based sponsor’s partner; or

(vi) adult child (aged 18 or over on the date of application) of the UK- based sponsor or of the UK-based sponsor’s partner; or

(vii) aunt or uncle of the UK-based sponsor; or

(viii)cousin of the UK-based sponsor; or

(ix) niece or nephew of the UK-based sponsor; or

 

(c) an immediate family member of an extended family member, meaning a:

(i) partner of an extended family member; or

(ii) child aged under 18 on the date of application of an extended family member; or

(iii) parent of a child aged under 18 on the date of application, where the child is the extended family member; or

(iv)fiancé(e) or proposed civil partner of an extended family member.

 

Fees

 

Current fees are £1538 for entry to the UK, £1048 to remain in the UK and £2404 to settle. Plus an immigration health surcharge of £624 per year per person for adults and £470 per year per child under 18. The adult dependent relative fee is £3250. 

 

Details are available here:

https://www.gov.uk/government/publications/visa-regulations-revised-table/home-office-immigration-and-nationality-fees-6-april-2022


Access to family migration comparison for Appendix FM, Afghanistan, Ukraine and refugees

 

Immediate family resettled/temporarily relocated as part of family unit

 

Additional Family Members

Fees

Access to public funds

Access to refugee family reunion

Access to Appendix FM (Family life)

ACRS Pathway 1[1]

Yes - ILR

In some cases AFM were resettled due to the urgent nature of evacuation.

No fee applies

Yes

No

Yes

ACRS Pathway 2 UKRS

Yes - ILR

UNHCR determine family unit (based on dependency)

No fee applies

Yes

Yes

Yes

ACRS Pathway 3

Yes - ILR

To be decided

No fee applies

Yes

No

Yes

Afghan Relocations and Assistance Policy

Yes - ILR

Yes - compelling circumstances related to security & dependency. AFM currently given leave outside the rules

No fee applies

Yes

No

Yes

Homes for Ukraine

Yes – 3 years Leave to Remain

No (but may be eligible in their own right provided they are a Ukrainian national)

No fee applies

Yes

No

Yes (if sponsor has settled status).

Ukrainian family scheme

Yes – 3 years Leave to Remain

Yes – wider definition of extended family

No fee applies

Yes

 

No

 

Yes where there is a qualifying relationship

Refugees

 

N/A

Exceptional circumstances (leave outside the rules) in their own right

No fee applies

Yes

Yes

Yes

Appendix FM (Family life)

 

30 months Leave to Remain

Exceptional circumstances (leave outside the rules) in their own right + Adult Dependent Relatives only at Entry Clearance

Fee waiver available where unaffordable

No – can apply for access free of charge

No

N/A


 


[1] Afghan Citizens Resettlement Scheme is a capped scheme to resettle those who have assisted the UK efforts in Afghanistan or are vulnerable.  Pathway 1 (Afghans evacuated under Op Pitting, Pathway 2 (Afghans referred from UNHCR), Pathway 3 (Afghans at risk as supporters of UK)