IMMIGRATION CATEGORIES AND FAMILY MIGRATION UNDER THE RULES
IMMIGRATION ACT 1971 speaks of the reasons for admission but only in general terms – workers,
students, visitors and family members constitute the vast majority of entrants
After the closure of the border to Commonwealth citizens 1962-1971 – the families of those who
had arrived sought entry as dependants, children or spouses
Government sought to restrict migration especially from Asia where the husbands were seen as
competing for jobs with UK workers – there was a virtual ban on husbands
1974 –technique control “primary purpose” rule prevailed under 1997 –Labour abolished
Family migration has become less politically sensitive – the Labour government tried to deter
illegal entry by restricting the right to marry of those without lawful status
Also introduced measures requiring spouses show language + cultural knowledge at integrating
Primary economic migration that proved troublesome – UK experience historically large in flows
of workers from outside the EU under the generous work permit system – This was a source of
controversy - even though the UK employment and economy was strong
Labour created a points based system (PBS) –select skilled migrants also applied to students
Applicants show a given level of education, funds and skills in order to enter – government went
further and imposed a “cap” on number of permits issued – however did not affect most of
immigration which falls under EU, family, human rights law or refugee law not affected by cap
2012 – very significant to family category brought it much closer to points-based system with the
high income thresholds being imposed on sponsors
INTRODUCTION
Family migration commonly by marriage or parenthood as rules other relatives restrictive
HOME OFFICE STATISTICS –2015 – 24% of spouses granted entry to UK from Pakistan and India
Family migration presents a challenge for government politically sensitive (re-unite with family)
Family has “Attracted the most controversial immigration rules” (JACKSON 1996)
Husbands often disguised as economic migrants – first major attempt to control marriage
migration to UK after COMMONWEALTH IMMIGRANTS ACT 1962 involved a ban between 1969
and 1974 on entry of Commonwealth husbands unless “special features” were present
1970s and 1980s – “primary purpose” rule removed in 1997 was more focused means of
minimizing entry of spouses – particularly husbands from India– while wives and children were
affected by the controversial administrative methods adopted by the clearance system
Two major themes – 1) encouraging integration of spouses and protecting victims of forced
marriage 2) preventing bogus or sham marriages
Incoming spouses must now pass knowledge of language + life in the UK tests before settlement
Government also introduced a pre-entry language requirement for spouses in 2010
LEAVE TO REMAIN
For a person who does not have right to abode in United Kingdom but who has been admitted to UK
without any time limit on their stay and is free to take up employment or study without restriction
Permission given by Home Office to remain in UK, may be limited or indefinite leave to remain
Indefinite leave to remain: enter/remain no time restrictions, settled, permanent residence
LEAVE TO ENTER
Grants a person subjection to immigration control permission to enter Britain for a limited period
only – subject to a number of conditions
o Restriction on employment
o Condition on requiring they accommodate themselves
o Condition they register with the police
Time limit – depends on individual circumstances and is provided to the applicant in person
1
, Do not have automatic right to enter Britain – ultimate decisions of entry is made by an
Immigration Officer at the port of entry under PARA 2A SCH 2 IMMIGRATION ACT 1971
Permission immigration officials at port of entry enter UK with a particular immigration category
Bibi v SSHD [2015] – Husbands are unable to satisfy the pre-entry language requirement
Bibi’s case – Husband would have to relocate to Pakistan for several months –not affordable
Mrs Ali – There is no test centre in Yemen where they lived
Appeal failed on basis that policy was not disproportionate due to availability of exemptions
although SUPREME COURT has invited further submissions in relation to whether Home Office
guidance on when exceptions should be made to the rule may be so restrictive as to be unlawful
- Minimum age of sponsorship and entry was raised to 18 in 2003 and 2004 in response to forced
marriages was raised to 21 – although SUPREME COURT found this in breach of ARTICLE 8 ECHR
- Unmarried and civil partners are recognised through these rules – Aspects of these provisions are
problematic – their presence suggests that “modern” values and relationship have achieved a
degree of official acknowledgment that often eludes “traditional” forms of family life
-So partner living in UK applicant needs to show several things join them
-Marriage is not enough to show ‘genuine relationship’ distinguish genuine + sham marriage
(sham to just stay in country can see when interview with contradictory responses)
IMMIGRATION RULES FOR MARRIED PARTNERS
When CIVIL PARTNERSHIP ACT 2004 implemented in 2005 – the Immigration rules on married
partners amended to include civil partners and the rules are now the same for both groups
Anyone who wants to enter UK and is subject to immigration control as married partner of
someone settled here – must obtain proper entry clearance
The requirements set out in APPENDIX FM of the current Immigration Rules
Entry clearance obtained as a married partner also operate as leave to enter providing its duration
and any conditions are endorsed on it
Most of the requirements to obtain leave as a married partner are same – whether applicant is
applying for entry clearance from abroad or is already in the UK in an another capacity
Case law on leave to remain case is sometimes used to illustrate same point to leave to enter
Rules of ‘family life with partner’ has two main headings –‘ELIGIBILITY’ & ‘SUITABILITY’
If meet core rules then Home Office needs to grant visa, if not then need persuade
Exceptional circumstances introduced after case of MM to have flexibility
Eligibility= ‘relationship’, ‘finance’ and ‘English language’
APPENDIX FM: ‘Family members’
RELATIONSHIP REQUIREMENTS (For applicant’s spouse – so applicant can enter)
British citizen, present and settled, or in UK with refugee leave or with humanitarian protection
At least 18 (tried to make 21 to reduce forced marriages, but SC said discrimination)
Applicant + partner must have met in person
Relationship is genuine and subsisting
Present and Settled Sponsor
First requirement is “applicant is married to a person present + settled in the UK or who is on the
same occasion being admitted for settlement” (Appendix FM GEN 1.3(b)
“Sponsor” – PARA 6 of rules – “person in relation to whom an applicant seeking leave to enter or
remain as spouse, fiancé, civil/proposed, unmarried, same sex partner or dependant relative”
“Settled” –includes has indefinite leave to remain under immigration law and right to abode
Parties Must Have Met
2
IMMIGRATION ACT 1971 speaks of the reasons for admission but only in general terms – workers,
students, visitors and family members constitute the vast majority of entrants
After the closure of the border to Commonwealth citizens 1962-1971 – the families of those who
had arrived sought entry as dependants, children or spouses
Government sought to restrict migration especially from Asia where the husbands were seen as
competing for jobs with UK workers – there was a virtual ban on husbands
1974 –technique control “primary purpose” rule prevailed under 1997 –Labour abolished
Family migration has become less politically sensitive – the Labour government tried to deter
illegal entry by restricting the right to marry of those without lawful status
Also introduced measures requiring spouses show language + cultural knowledge at integrating
Primary economic migration that proved troublesome – UK experience historically large in flows
of workers from outside the EU under the generous work permit system – This was a source of
controversy - even though the UK employment and economy was strong
Labour created a points based system (PBS) –select skilled migrants also applied to students
Applicants show a given level of education, funds and skills in order to enter – government went
further and imposed a “cap” on number of permits issued – however did not affect most of
immigration which falls under EU, family, human rights law or refugee law not affected by cap
2012 – very significant to family category brought it much closer to points-based system with the
high income thresholds being imposed on sponsors
INTRODUCTION
Family migration commonly by marriage or parenthood as rules other relatives restrictive
HOME OFFICE STATISTICS –2015 – 24% of spouses granted entry to UK from Pakistan and India
Family migration presents a challenge for government politically sensitive (re-unite with family)
Family has “Attracted the most controversial immigration rules” (JACKSON 1996)
Husbands often disguised as economic migrants – first major attempt to control marriage
migration to UK after COMMONWEALTH IMMIGRANTS ACT 1962 involved a ban between 1969
and 1974 on entry of Commonwealth husbands unless “special features” were present
1970s and 1980s – “primary purpose” rule removed in 1997 was more focused means of
minimizing entry of spouses – particularly husbands from India– while wives and children were
affected by the controversial administrative methods adopted by the clearance system
Two major themes – 1) encouraging integration of spouses and protecting victims of forced
marriage 2) preventing bogus or sham marriages
Incoming spouses must now pass knowledge of language + life in the UK tests before settlement
Government also introduced a pre-entry language requirement for spouses in 2010
LEAVE TO REMAIN
For a person who does not have right to abode in United Kingdom but who has been admitted to UK
without any time limit on their stay and is free to take up employment or study without restriction
Permission given by Home Office to remain in UK, may be limited or indefinite leave to remain
Indefinite leave to remain: enter/remain no time restrictions, settled, permanent residence
LEAVE TO ENTER
Grants a person subjection to immigration control permission to enter Britain for a limited period
only – subject to a number of conditions
o Restriction on employment
o Condition on requiring they accommodate themselves
o Condition they register with the police
Time limit – depends on individual circumstances and is provided to the applicant in person
1
, Do not have automatic right to enter Britain – ultimate decisions of entry is made by an
Immigration Officer at the port of entry under PARA 2A SCH 2 IMMIGRATION ACT 1971
Permission immigration officials at port of entry enter UK with a particular immigration category
Bibi v SSHD [2015] – Husbands are unable to satisfy the pre-entry language requirement
Bibi’s case – Husband would have to relocate to Pakistan for several months –not affordable
Mrs Ali – There is no test centre in Yemen where they lived
Appeal failed on basis that policy was not disproportionate due to availability of exemptions
although SUPREME COURT has invited further submissions in relation to whether Home Office
guidance on when exceptions should be made to the rule may be so restrictive as to be unlawful
- Minimum age of sponsorship and entry was raised to 18 in 2003 and 2004 in response to forced
marriages was raised to 21 – although SUPREME COURT found this in breach of ARTICLE 8 ECHR
- Unmarried and civil partners are recognised through these rules – Aspects of these provisions are
problematic – their presence suggests that “modern” values and relationship have achieved a
degree of official acknowledgment that often eludes “traditional” forms of family life
-So partner living in UK applicant needs to show several things join them
-Marriage is not enough to show ‘genuine relationship’ distinguish genuine + sham marriage
(sham to just stay in country can see when interview with contradictory responses)
IMMIGRATION RULES FOR MARRIED PARTNERS
When CIVIL PARTNERSHIP ACT 2004 implemented in 2005 – the Immigration rules on married
partners amended to include civil partners and the rules are now the same for both groups
Anyone who wants to enter UK and is subject to immigration control as married partner of
someone settled here – must obtain proper entry clearance
The requirements set out in APPENDIX FM of the current Immigration Rules
Entry clearance obtained as a married partner also operate as leave to enter providing its duration
and any conditions are endorsed on it
Most of the requirements to obtain leave as a married partner are same – whether applicant is
applying for entry clearance from abroad or is already in the UK in an another capacity
Case law on leave to remain case is sometimes used to illustrate same point to leave to enter
Rules of ‘family life with partner’ has two main headings –‘ELIGIBILITY’ & ‘SUITABILITY’
If meet core rules then Home Office needs to grant visa, if not then need persuade
Exceptional circumstances introduced after case of MM to have flexibility
Eligibility= ‘relationship’, ‘finance’ and ‘English language’
APPENDIX FM: ‘Family members’
RELATIONSHIP REQUIREMENTS (For applicant’s spouse – so applicant can enter)
British citizen, present and settled, or in UK with refugee leave or with humanitarian protection
At least 18 (tried to make 21 to reduce forced marriages, but SC said discrimination)
Applicant + partner must have met in person
Relationship is genuine and subsisting
Present and Settled Sponsor
First requirement is “applicant is married to a person present + settled in the UK or who is on the
same occasion being admitted for settlement” (Appendix FM GEN 1.3(b)
“Sponsor” – PARA 6 of rules – “person in relation to whom an applicant seeking leave to enter or
remain as spouse, fiancé, civil/proposed, unmarried, same sex partner or dependant relative”
“Settled” –includes has indefinite leave to remain under immigration law and right to abode
Parties Must Have Met
2
