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The new immigration rules on family migration and Article 8 ECHR - initial analysis

Written by
Ed Mynott
Date of Publication:
13 June 2012

On 9 June 2012 the government issued its 'Statement of Intent: Family Migration' which set out how the government expected its long awaited new immigration rules relating to family migration to operate from 9 July 2012 onwards. The 'Statement of Changes in Immigration Rules' – HC194 - setting out the actual rules themselves was published a few hours ago.

The new approach outlined in the Statement of Intent represents, at the very least, the most significant change in the UK's system of immigration control since the introduction of the points based system from 2008. In some ways the change is even more significant and ambitious than the introduction of the points based system. Moreover the rule changes are planned largely to take effect in a big bang on 9 July 2012 rather than being phased in, as were the various tiers of the points based system.

Why is all this such a big deal? The government's new approach is significantly different in two main ways:

Firstly, the substantive requirements for family members of non-EEA nationals to obtain leave have been altered to include a number of novel features:

The previous approach of determining that there will be no additional recourse to public funds (essentially: means tested benefits and public housing) where a household enjoys an income equivalent to that received by a person or family on means tested benefits, has disappeared. It has been replaced by an annual minimum income requirement currently set at £18600 for a couple rising to: £22,400 where there is a child and an additional £2,400 for each further child. This figure is lower than that trailed in media leaks following the consultation process. Nonetheless, according to one estimate: 'nearly 40% of the working population of the UK would be prevented from sponsoring a foreign spouse or partner in the future.' [1] The minimum income threshold will apply before entry and right up until the family member is granted Indefinite Leave to Remain. At the stage of application for entry clearance only the sponsor's income can be relied upon but once applications for further leave are made, both the sponsor's and the migrant's income can be relied on. At all stages, savings of both sponsor and migrant can be relied on – but only those in excess of £16,000.

In a style now familiar from the immigration rules governing Tiers 1-5 of the points based system, the new rules will prescribe in excruciating detail which sources of income and capital can be relied on and which particular documents will have to be submitted with an application. Despite the current official distaste for 'red tape', we can anticipate that requirements previously set out in a few paragraphs will now run to many pages.

The other novel change is the intention to give detailed guidance on when a marriage is or is not 'genuine and subsisting'. In part this guidance seeks to identify forced marriages or signs of a 'sham' marriage such as being unable to speak a common language. But much more problematically it sets out factors which 'may' indicate a marriage is not genuine. Such factors include there being 'few guests' at a wedding or reception and even: 'a lack of appropriate contribution to the responsibilities of the marriage, partnership or relationship, e.g. a lack of shared financial or other domestic responsibilities.'

Another substantive change is that the period before a settlement application can be made has been extended from two years to five years in two successive 30 month stages – in order to test the genuineness of the relationship. Where an applicant succeeds under Article 8 alone, they will not be able to settle for 10 years.

Other changes relating to English language tests and an absence of criminal convictions represent an extension of requirements already present in the current rules. The new rules will also close some existing routes such as the 14 year long residence route and Leave to Remain (as opposed to leave to enter) for dependent relatives such as parents and grandparents.

Currently around 54,000 people migrate to the UK under the family route. It is to be expected that many more of this cohort will fail in their applications in future or even decide not to try.

Article 8

The second and more ambitious way in which the Immigration Rules are significantly changing is in relation to Article 8 of the European Convention on Human Rights which protects the right to respect for private and family life. Uniquely for changes to Immigration Rules, the government intends a full debate in parliament before the 'negative resolution procedure' by which the rules are approved, in order to give some democratic legitimacy to its incorporation of Article 8 into the Rules. According to the Statement of Intent:

7…The new rules will reflect fully the factors which can weigh for or against an Article 8 claim. They will set proportionate requirements that reflect, as a matter of public policy, the Government's and Parliament's view of how individual rights to respect for private or family life should be qualified in the public interest to safeguard the economic well-being of the UK by controlling immigration and to protect the public from foreign criminals. This will mean that failure to meet the requirements of the rules will normally mean failure to establish an Article 8 claim to enter or remain in the UK, and no grant of leave on that basis.

The factors which the Rules will 'reflect' are intended to include everything which statute and case law has established can weigh for or against the individual. One striking example of this approach given by the Statement is that where there is a custodial sentence of less than 12 months and the Home Office considers that the offending has caused 'serious harm', only if the offender has lived for 15 years with a British or settled partner and there are 'insurmountable obstacles' to the couple relocating overseas, will deportation of the offender be disproportionate. Even where the couple have a British child, unless there is no family member able to care for the child in the UK, deportation will be deemed proportionate.

Procedurally, Article 8 assessments will no longer be conducted outside of the Immigration Rules as a facet of the Secretary of State's discretionary power to act outside the Immigration Rules, leading to a grant of Discretionary Leave where Article 8 would be breached. The government's intention is that only a residue of genuinely exceptional cases will succeed outside of the Immigration Rules.

It must be open to question how successful the government will be in this ultra-prescriptive approach – even leaving aside its attempted resurrection of the 'insurmountable obstacles' and 'exceptionality' tests struck down by the courts several years ago. (Huang (2007); AG (Eritrea) (2009). Insofar as the Rules represent the government's view of where the public interest generally lies in Article 8 cases the new approach is little more than an attempt at a detailed codification of its policy – albeit a necessarily rigid one which extends the tendency developed in the points based system to take away any discretion from first instance decision-makers in the Home Office.

However, the government is attempting to go much further than this. Its intention is that the new Immigration Rules will:

38…fill [the] public policy vacuum by setting out the Secretary of State's position on proportionality…the rules will state how the balance should be struck between the public interest and individual rights…Therefore, if the rules are proportionate, a decision taken in accordance with the Rules will, other than in exceptional cases, be compatible with Article 8.

39…Where the rules have explicitly taken into account proportionality, the role of the Courts should shift from reviewing the proportionality of individual administrative decisions to reviewing the proportionality of the rules.

Insofar as the government attempts to elevate its rules to a definitive expression of when a decision will be proportionate and from which judges will only exceptionally deviate on appeal, it faces serious difficulties. The government still does not appear to distinguish between identifying a legitimate aim under Article 8.2 and identifying whether interference is proportionate in a given case:

31…[Applicants] will have to meet clear, transparent requirements on the face of the rules, e.g. that they have no significant criminality, are in a genuine relationship, and meet the minimum income threshold and English language requirements. These requirements are proportionate because there is a strong rationale and evidence base, including in the Migration Advisory Committee's report on the income threshold, for why they serve the public interest.

Article 8 is a highly fact-sensitive assessment and insofar as any rigid codification provided for in the Rules is incapable of addressing the facts of an individual's case and insofar as the Rules do not properly express the case law of the UK and European courts, judges on appeal will not simply be reviewing a Home Office decision but will need to make their own assessment of whether Article 8 has been breached.

For those families facing separation because, for example, they do not have the resources to meet the minimum income requirement, Article 8 continues to offer hope of potential success despite the government's attempts to restrictively codify when it will be breached.

[1] Ruth Grove White,, 11 June 2012