EMN FAMILY REUNIFICATION REPORT SMALL SCALE STUDY IV BY LEILA WRIGHT AND CHRISTINE LARSEN IMMIGRATION RESEARCH AND STATISTICS

Transcription

1 EMN FAMILY REUNIFICATION REPORT SMALL SCALE STUDY IV BY LEILA WRIGHT AND CHRISTINE LARSEN IMMIGRATION RESEARCH AND STATISTICS

2 EMN Small Scale Study IV Family Reunification Definitions The UK s definitions of the following terms are largely as specified in Directive 2003/86/EC, Article 2, and the ad hoc query amongst EMN National Contact Points relating to the definition of dependents. Nuclear family according to Directive 2003/86/EC, family reunification should apply to the nuclear family, that is, the spouse and minor children. The UK s definition of the nuclear family matches this description. Third country national means any person who is not a citizen of a country in the European Union within the meaning of Article 17(1) of the Treaty; as stated in the Directive. Refugee means any third country national or stateless person enjoying refugee status within the meaning of the Geneva Convention relating to the status of refugees of 28 July 1951, as amended by the Protocol signed in New York on 31 January 1967; as stated in the Directive. Sponsor largely as in the Directive, sponsor means a third country national residing lawfully in a Member State and applying or whose family is applying for family reunification to be joined with him/her; however, according to the UK s definition a sponsor must be present and settled in the UK. Family Reunification according to the Directive this means the entry into, and residence in, a Member State by family members of a third country national residing lawfully in that Member State in order to preserve the family unit, whether the family relationship arose before or after the resident's entry. The UK s definition of family reunification matches this description. Residence permit entry clearance visas, if issued for six months or more to third country nationals given leave to enter the UK, act as authorisations to reside in the UK. Third country nationals subject to immigration control already in the UK, who successfully change or extend their immigration status, are issued a UK residence permit (as part of a vignette in their passport). EEA nationals in the UK are entitled to request registration certificates; however, they are not required to do so. Third country nationals who are dependants of an EEA national are entitled to a residence card; however they are not required to have one. These are all categories in which residence permits or authorisations acting as residence permits are issued in the UK. Unaccompanied minor means third country nationals or stateless persons below the age of eighteen, who arrive on the territory of the Member States unaccompanied by an adult responsible by law or custom, and for as long as they are not effectively taken into the care of such a person, minors who are left unaccompanied after they have entered the territory of the Member States. Dependant as in the ad hoc query between EMN members (January 2007). It was decided that the definition of a dependant should be regarded as follows: a dependant is any person who is granted entry and residence by a Member State (MS) to stay with their family member (i.e. the person referred to as sponsor in Directive 2003/86/EC) and who has explicitly filed an application for reasons of family reunification. Entry clearance an inclusive term for visas (for visa nationals), entry certificates (for non-visa nationals) and EEA family permits for the non-eea family members of EEA nationals. An entry clearance takes the form of a sticker ("vignette") placed in a person's passport. Entry clearance includes both limited leave to remain and Indefinite Leave to Enter. Indefinite Leave to Remain (ILR) permission given by the Border and Immigration Agency to remain in the UK, without time limit (settlement), to persons who under the Immigration Act 1971 Act require leave to enter or remain. Persons granted ILR are subject to immigration control and a two-year absence from the country can result in cancellation. ILR may be revoked under section 76 of the Nationality, Immigration and Asylum Act Indefinite Leave to Enter (ILE) This is the immigration status granted by the Border and Immigration Agency to those foreign nationals who qualify for settlement in the UK on arrival without needing to complete an initial probationary period. A person granted this status has no immigration restrictions placed on the work they may carry out in the UK, and no time limited on their stay. Someone granted ILE is still subject to immigration control and a two-year absence from the country (sometimes less) can result in cancellation. There are few categories in which ILE is granted but these include dependent relatives and spouses who have completed four years living together abroad with their spouse who has right of abode or ILR in the UK. The term present and settled is defined for applicants as follows. Settled means being allowed to live in the UK lawfully, with no time limit. 'Present and settled' means that the person concerned [in the case of family reunification, the sponsor] is settled in the UK and, at the time that the dependents application is being considered under the Immigration Rules, is in the UK or is coming here with the dependent, or to join the dependent and plans to live with them in the UK if their application is successful. 1 1 This is taken from the guidance notes for applicants wishing to settle in the UK, please see UKvisas website for full text. 2

3 1. Executive Summary Aim This UK country report describes the UK s family reunification policies and presents data on applications and on the characteristics of those who apply to enter and settle in the UK under one of the family reunification routes. The report was produced by the UK National Contact Point for the European Migration Network (EMN) as a contribution to the EMN Small Scale Study IV on Family Reunification. In the context of the 17 th EMN meeting, the majority of participating National Contact Points (NCPs) agreed that the topic for the fourth small scale study should be Family Reunification and Family Formation, this title was later changed to Family Reunification. The report will, along with those of other participating Member States, feed into an EMN synthesis report. The synthesis report will compare family reunification policies and flows in the participating Member States and assess the extent to which Directive 2003/86/EC has been transposed into national legislation. Methodology This report is based on desk research, using internet sources and other literature. It pulls together existing evidence only in order to fulfil the project specification. No primary research was undertaken. However, information was provided by statistics, policy and operational colleagues within the Border and Immigration Agency (BIA) and UKvisas. Although the study includes information regarding the sponsor, the focus is on his or her family member, referred to as the dependant (or applicant) in this report. A literature search was conducted in order to uncover further information with regards to family reunification in the UK, and particularly the effects of chain migration, but little arose from this search that related specifically to the UK. Using the UK s monthly EMN newsletter to the network of national contacts, a request was made for information regarding family reunification. No further information was uncovered in response to the request. Statistical data Statistical data were sought to provide information on the number of applications for UK family reunification, the decisions made with respect to the filed applications and the composition of dependants and the sponsors who they apply to join. The data were provided by colleagues within BIA within Immigration Research and Statistics (IRS) and the Data Management team, and by UKvisas Data Management team. Data provided by the BIA and UKvisas Data Management teams is from local management information and is not part of National Statistics. As such, it should be treated as provisional and therefore subject to change. Family reunification policy The following categories of dependants may apply to join family members present and settled in the UK through the family reunification route. Spouse or civil partner Fiancé(e) or proposed civil partner Unmarried or same sex partner Child or adopted child Parent, grandparent and other dependent relative A key theme running through the UK s family reunification policy is that, regardless of the relationship between sponsor and applicant, the sponsor must be present and settled in the UK. Without this crucial element, an application via a family reunification route would not be 3

4 successful. The only exception to this is where the sponsor, following an asylum claim, has been granted five years limited leave as a refugee or five years temporary protection (i.e. Humanitarian Protection). In both these circumstances, where only limited leave has been granted to the sponsor, an application for family reunification will be considered. Another key element in the Immigration Rules dealing with such applicants is that of dependency. In order to qualify under the Rules, the applicant must be dependent upon the sponsor. A child (under 18) is always viewed as the dependant of its parent or parents and so a child cannot qualify as a sponsor under the Immigration Rules. Therefore no child could sponsor the entry of its parents. For each category of applicant, there is additionally a set of criteria that must be met in order for the application to be successful. The criteria for each category of entry within a family reunification route are described within the report. A number of criteria apply to all applicants to ensure that relationships are as described, and in the case of marriage, are valid and recognised in the UK. The application of these criteria also ensures that entry via these routes is properly monitored, not seen as routes of easy access for living in the UK, and ensures that genuine applicants are able to join family members and exercise their rights to family life. Key aspects for all categories applying for family reunification are as follows. The sponsor must be present and settled in the UK; the sponsor (and in some cases the applicant) has adequate financial support for both parties and any other dependants without accessing public funds; the sponsor (and in some cases the applicant) has adequate accommodation, where they can both live with any other dependants, without accessing public funds; and the applicant (and in some cases the sponsor) are within specified age range for entry within their category. There are also several other criteria outlined within the report which are specific to some categories but not all. For example, in cases where an application is made to join a spouse who is present and settled in the UK, the validity of the marriage will be assessed to ensure that it would be recognised in the UK. The UK s integration requirements for dependants applying to join a sponsor who is present and settled in the UK are outlined in Part 8 of the Immigration Rules. New rules for permanent settlement were introduced in April 2007 and applicants are now required to have sufficient knowledge of English, Welsh or Scottish Gaelic language and sufficient knowledge of life in the UK, unless s/he is under the age of 18 or aged 65 or over at the time that the application is made. The new requirements aim to aid integration of migrants into their new communities in the UK, and bring the rights and obligations of those seeking settlement more closely in line with those for citizenship. There are differences between family reunification rights under Community law for EEA nationals (Directive 2004/38/EC) and UK immigration provisions: definitions of family members are different and the concept of extended family members is present in the Directive only. Another difference is that nationals of a Member State who go with their non-eea family members to another Member State to exercise a Treaty right in an economic capacity, will on return to their home state, be entitled to bring their non-eea family members to join them under EC law. There are no immediate plans to change policy with reference to family reunification. There are, however, plans to redefine family members for those looking to enter the UK temporarily under the 4

5 sponsored family visitors route. It is not envisaged that this will have any impact on family reunification policy. The UK opt-out The UK opted out of Directive 2003/86/EC on Family Reunification, primarily because it is not in line with the UK s border control policies. The UK does generally follow the guidance of the Directive, but has chosen to opt out in order to avoid any possible clashes with current border control policies and any possible future changes. Although the UK opted out of the Directive, this report aims to clarify aspects of the UK s family reunification policies that relate to the Directive s articles to improve comparability with these policies in other member states. Family reunification immigration process Leave to enter the UK through the family reunification route involves a sponsor who is present and settled in the UK, an applicant (in one of the categories listed earlier in this summary), and the UK authorities. Dependants submit their application within their country of origin, or the country where they are living legally before coming to the UK. The granting of applications is ultimately dependent on the Secretary of State being satisfied that each of the applicable requirements of the specific case has been met. In practice, the main government actors within the application process are UKvisas and BIA. UKvisas Entry Clearance Officers (ECOs) are responsible for mandatory 2 prior entry clearance, which takes place when applications are made to a British Embassy, Consulate or High Commission in the applicant s country of origin (or country where s/he lives legally). BIA Immigration Officers at the UK border will then confirm that applicants have the correct clearance papers before entering the UK. They will also ensure that they are satisfied that the information provided in the application was genuine, and that circumstances have not changed before granting the applicant entry into the UK. Applicants are either granted Indefinite Leave to Enter (ILE, settlement on arrival) or leave to enter for a set probationary period (for example, a two year probationary period must be completed by an applicant granted limited leave to join a spouse or civil partner, unmarried or same sex partner). The UK makes use of various checking procedures to assess the family tie for family reunification applications. If an ECO decides that, based on the documentary evidence available, substantial doubts exist about the family tie between the applicant and sponsor, DNA testing may be used to ensure that the family relationship is as claimed within the application. DNA tests are not compulsory, and if an applicant declines a test, that alone will not be grounds for refusing the application; however, the ECO will record the reasons for declining the offer of a DNA test, which will form part of the basis of the decision. These tests are provided free of charge to first time applicants (for entry clearance applications only). Tests are only undertaken with the agreement of the applicant(s) and sponsor, and with the authority of an ECO. For those applicants granted limited leave to enter, once this probationary period has been completed they may apply for Indefinite Leave to Remain (ILR, settlement). BIA Caseworkers within the UK will decide whether applicants for ILR at this stage meet the requirements to be granted settlement. The BIA Caseworker or UKvisas ECO will look at the funds available to the sponsor and use discretion to decide whether these would be sufficient to support the applicant(s) without recourse to public funds, a requirement of family members seeking settlement. 2 Non-visa nationals seeking to enter the UK in a visa category for more than six months require a visa, whereas those seeking to enter the UK for six months or less do not. 5

6 Public funds do not include benefits based on National Insurance contributions, such as: contribution-based jobseeker's allowance Incapacity Benefit retirement pension widows benefit and bereavement benefit guardian s allowance statutory maternity pay Health care and education also do not count as public funds and family members are entitled to these services and may make use of them before they are granted settlement. Dependants joining a sponsor who has been granted refugee status will also be eligible for free health care and education. After applicants are granted ILR or ILE they have settlement rights independent of their sponsor. Entry Clearance Applicants granted entry clearance comprise those who are granted limited leave (i.e. an initial probationary period of leave to be completed before they can apply for ILR) and those who are granted ILE (settlement on arrival). Between 2004 and 2006, the annual number of applications for entry clearance for family reunification decreased by 12% from 22,061 to 19,355. Looking at the make-up of the applicants for entry clearance during this period, the statistics showed that female dependants accounted for the majority of applications (average 62%). Dependants seeking entry clearance to join a spouse/civil partner or under asylum-related family reunion made up the majority of applications over this period. With regard to the age of dependents, during 2004 and 2005, the majority of applications for entry clearance were made by dependants under the age of 18, whereas in 2006 the majority of applications were made by dependants aged 18 or over. In 2006 the top countries for family reunification applications for entry clearance were former Commonwealth countries, reflecting the large diasporas in the UK. Indefinite Leave to Remain In 2006, 58,890 applications for ILR for family reunification purposes were made an increase of 63% on the 36,165 applications made in This large increase was probably largely due to a change in policy which came into place in April In brief, this policy change resulted in an increase in the period of leave given to some passengers entering the UK as a spouse from 12 months to two years, and for others it was replaced with immediate ILE. This meant that an extra 12 months was added to the probationary period to be completed before some spouses could then apply for ILR, resulting in a large increase in the number of applications two to three years after the policy change occurred. Looking at the make-up of applicants for ILR, the statistics show that, between 2004 and 2006, within family reunification categories, as with entry clearance, female dependants made up the majority of those applying for ILR (average 61%). The majority of dependants applying for ILR from 2004 to 2006 were spouses. Consistently, between 2002 and 2006, the highest numbers of grants of settlement in the family formation and reunion category were issued to wives of sponsors. Looking at the ages of applicants, the statistics show that, between 2004 and 2006, 26 to 30-year olds were the largest age group of dependants to be granted settlement. With regard to nationality, as with entry clearance, in 2006 the top countries for family reunification applications for ILR were former Commonwealth countries. 6

7 2. Introduction: Family Reunification in the United Kingdom 2.1 Background information Aims and scope This UK country report describes the UK s family reunification policies and presents data on applications and on the characteristics of those who apply to enter and settle in the UK under one of the family reunification routes. The report was produced by the UK National Contact Point for the European Migration Network (EMN) as a contribution to the EMN Small Scale Study IV on Family Reunification. In the context of the 17 th EMN meeting, the majority of participating National Contact Points (NCPs) agreed that the topic for the fourth small scale study should be Family Reunification and Family Formation, this title was later changed to Family Reunification. The report will, along with those of other participating Member States, feed into an EMN synthesis report. The synthesis report will compare family reunification policies and flows in the participating Member States and assess the extent to which Directive 2003/86/EC has been transposed into national legislation. The chapter and section headings are those provided by the EMN. The UK opted out of Directive 2003/86/EC on Family Reunification, primarily because it is not in line with the country s border control policies. The specifications for this study asked for information on decisions that Member States have made with regard to particular articles of the Directive. Although the UK opted out of the Directive, this report aims to clarify aspects of the UK s family reunification policies that relate to these articles to improve comparability with these policies in other Member States. The UK s family reunification policy is largely laid out in the Immigration Rules, Part 8 Family Members. The majority of the information provided in this report on the UK s family reunification policy has been taken from these Rules. The Rules include information for BIA staff and for those who apply as the spouse or civil partner, fiancé(e) or proposed partner, unmarried or same sex partner, child or adopted child, parent or grandparent, or other dependent relative of someone who is present and settled in the UK. Those who enter as a dependant at the same time as a sponsor who is not present and settled in the UK are not included in the UK s family formation and reunion statistical data. This is because the Immigration Rules state that sponsors must be present and settled in the UK, in order for an application under one of the family reunification routes to be successful. The only exception to this is where the sponsor, following an asylum claim, has been granted five years limited leave as a refugee or five years temporary protection (i.e. Humanitarian Protection or Discretionary Leave). In both these circumstances, where only limited leave has been granted to the sponsor, an application for family reunification will be considered. A sponsor who is present and settled in the UK may leave the country to accompany a dependant who has been given entry clearance into the UK; because the sponsor has left temporarily, the application is still valid for consideration under the relevant family reunification route. This study covers current and planned future UK policy, relevant available statistics and the ways in which the UK s policy fits in with Directive 2003/86/EC. Owing to time constraints, it was not possible to cover section 3.1 a) of the study specification ( practice followed for optional ( may ) clauses in the Directive) in this report specifically. Some of these clauses may, however, be covered within the responses to policy questions surrounding the various articles. All other sections are covered as far as possible in the context that the UK opted out of the Directive. 7

8 Much of the statistical data required by the study specification was not readily available and hence it was not possible to provide all the required statistics in the required format. Also, some of the data are provided from management information and not National Statistics. As such, the figures should be treated as provisional and therefore subject to change. Tables that contain provisional data have been footnoted to indicate this. The statistics nevertheless provide a good overall picture of those entering the UK as family members of sponsors present and settled in the UK and the scale of such entry in comparison to those who enter the UK through other migration routes. Reasons for the UK s opt out of the Directive When Directive 2003/86/EC was put forward by the European Commission, the UK, on reflection, chose to opt out. This decision was taken as a result of the impact that the Directive would have on this route of legal migration, which would be incompatible with the UK s border control policies. In continental Europe and particularly in the Schengen states, people can cross borders with relative ease. The UK chooses to maintain tight border controls and is therefore protective of its current position. The family reunification Directive requires Member States to admit the spouse and minor children of spouses. First degree relatives in the ascending line, adult unmarried children and unmarried registered partners may be admitted at the discretion of the Member State. The UK chose not to opt into the Directive in order to retain domestic control over admissions policy in this area. However, in remaining outside this Directive, it is not the Government s intention that the UK should be seriously out of line with our European partners. The UK does generally follow the guidance of the Directive, but has chosen to opt out in order to avoid any possible clashes with the current border control policies and any possible future changes. The UK is currently looking to tighten up the definition of what constitutes a family member, specifically in relation to family visitors. People who are refused entry clearance for the purpose of visiting family members may appeal to the Asylum and Immigration Tribunal (AIT). The current definition of qualifying family relationships is broad and, as announced in the Five Year Strategy 3, the UK will look to tighten this definition so that there is a right of appeal only where the proposed visit is to a close family member. 2.2 Definitions Please see page two for details of UK definitions. 2.3 Methodology This report is largely a result of desk research. No primary research was undertaken. Information was taken from the Border and Immigration Agency (BIA, formerly IND), UKvisas and other relevant websites on the UK s family reunification policies. Also, policy and operational colleagues from across BIA and UKvisas provided vital information and clarification, particularly with reference to the reasons why the UK opted out of the EC Directive. Statistical data relating to the flows and characteristics of those applying to enter and settle in the UK for family reunification purposes were kindly provided by colleagues in BIA s Immigration Research and Statistics (IRS), and the BIA and UKvisas Data Management teams. A literature search was conducted in order to find further information with regards to family reunification in the UK, and particularly the effects of chain migration, but little arose from this search that related specifically to the UK. Using the UK s monthly EMN newsletter to a network of national contacts, a request was made for information regarding family reunification. Unfortunately these contacts were unable to provide any information for this study. 3 Please see Controlling our borders: Making migration work for Britain, Five Year Strategy for full details. 8

9 3. National Family Reunification Policy in the United Kingdom Overview of national family reunification policy at the end of 2006 In order to provide an overview of the UK s national Family Reunification Policy, an overview must first be provided of the immigration process. The summary flowchart 4 on page 11 provides an overview of all major immigration routes into the UK. The shaded boxes provide an overview of the main paths taken by dependants applying to join sponsors present and settled in the UK through family reunification. Following the shaded boxes of the flow chart from the top right hand side of the page, it can be seen that applications for entry clearance must be made before reaching the UK border. Dependants applying to join sponsors present and settled in the UK must apply for entry clearance at this stage, in their country of origin (or country where they are living legally) before coming to the UK. These applications are dealt with by Entry Clearance Officers (UKvisas) at British Embassies, Consulates or High Commissions where applications for entry clearance are made overseas. Once an application has been decided by Entry Clearance Officers, dependants will find that they have either been refused leave to enter (in which case they cannot come to the UK to join their sponsor) or they have been granted leave to enter for a limited period or Indefinite Leave to Enter (ILE). Those granted leave to enter but not ILE will be allowed to enter the UK for a set period; once this period has been completed, they may apply for Indefinite Leave to Remain (ILR). Those granted ILE will not need to re-apply for ILR, as they have already been granted settlement. On receiving entry clearance for either limited leave to enter or ILE, applicants may come to the UK. Upon their arrival at the UK border, Immigration Officers (BIA) will check that the entry clearance documents are genuine and verify the dependant s identity and nationality details. In cases where they assess a need for further investigation, they will also satisfy themselves that the circumstances under which the documents were issued have not changed, and that there are no previously unidentified risks associated with the entry of the dependant. Provided that all the above requirements are satisfied, the dependant will be granted entry to the UK. Once in the UK, those who were granted ILE can stay in the UK indefinitely without needing to reapply for ILR. Those granted indefinite leave (ILE or ILR) are entitled to settle in the UK but this leave is not permanent and irrevocable. Persons granted indefinite leave remain subject to immigration control and a two-year absence from the country (sometimes less) can result in cancellation. There are also limited grounds concerned with national security and terrorism on which indefinite leave can be revoked. Dependants who were granted leave to enter may apply for ILR once they have completed their initial probationary period of entry. In-country applications for ILR at this stage will be decided by Caseworkers (BIA) within the UK. Providing that all the relevant conditions for family reunification ILR under their route of entry have continued to be met, Caseworkers will grant dependants ILR. If all the conditions are not met (for example, if the relationship between the dependant and the sponsor has broken down) the application for ILR will be refused. On having been granted settlement (either ILE or ILR) applicants are entitled to settle in the UK and their status is no longer linked to or dependent on their sponsor. Some applicants may apply in the UK, in family formation and reunion categories, having entered the country in another capacity (such as a student studying in the UK for more than six months). If dependants are in the UK under an immigration status that does not prohibit them from switching immigration categories, they may apply for an extension of leave to remain within a family 4 SOURCE: Control of Immigration: Statistics UK 2005 (Command Paper), page 4. This flowchart has been edited by IRS for clarification for its purpose in this report. 9

10 reunification category. If they are refused leave to remain, they will need to leave the UK. However, if they are granted leave to remain, they may stay in the UK, and apply for ILR at a later stage. 10

11 Summary flowchart - Control of Immigration 5 Legend Likely path Possible other paths Non-Visa national (1) Visa national (1) Prior Entry clearance is mandatory (2) Returned to: country where journey originated; country of nationality; or country where acceptable Refused leave to enter Apply at a British mission overseas for leave to enter the United Kingdom Refused leave to enter Granted leave to enter Granted indefinite leave to enter Refused leave to enter the UK and removed Apply for asylum at the border Border Control UK Border UK Border Refused asylum, humanitarian protection or discretionary leave Detained and/or granted temporary admission while asylum claim processed Granted entry to the UK Granted indefinite leave to enter Persons who evade border control Apply for asylum in country Granted asylum, humanitarian protection or discretionary leave Stay in the UK Illegally reside in the UK Apply for further leave to remain: in current immigration category; or to switch to new immigration status Apply for indefinite leave to remain (settlement) Breach a condition of leave granted or commit a criminal offence Return home/ further travel Refused asylum, humanitarian protection or discretionary leave Refused extension of leave to remain Granted extension of leave to remain Refused settlement Granted settlement Permanent residence in the UK : no restrictions Refused leave to remain in the United Kingdom Breach immigration rules or a condition of leave granted Illegally reside in the UK Enforcement/removal action initiated Return home/ further travel Grants of British Citizenship Detailed statistics on Citizenship can be found in the Home Office Statistical Bulletin 'Persons Granted British Citizenship United Kingdom' Removed or Deported from the United Kingdom UK Border (1) Data related to visa applications and decisions are published by UKvisas and can be found on UKvisas website. (2) Non-visa nationals seeking to enter the UK in a visa category or for > 6 months require a visa, whereas those seeking to enter the UK for 6 months do not. 5 Other possible, less common routes which deviate from these main paths illustrated have not been included to avoid overcomplicating this high level overview. 11

12 This explanation and summary flowchart provide a basic overview of the family reunification process in the UK. This aims to improve the ease of understanding of the information that follows, regarding both the UK s family reunification policy, and the statistical data provided. a) Practice followed for the optional ( may ) clauses Owing to time constraints, this section has not been addressed. Many of the issues raised by these may clauses are, however, covered within the section of the report that discusses the UK s family reunification policy in relation to the Directive. b) Conditions for granting entry and residence 6 This section sets out the conditions for granting entry and residence for each of the different categories of dependants who may apply under the family reunification route. Spouses and civil partners In order for applicants to qualify to join their husband, wife or civil partner 7 in the UK, they must show that: they are legally married to each other or are in a civil partnership recognised in the UK; their husband, wife or civil partner is present and settled in the UK; they both intend to live together permanently as husband and wife or as civil partners; they have met each other before; together they can support themselves and any dependants without any help from public funds; they have suitable accommodation, which is owned or lived in only by themselves and their household, and where they and their dependants can live without any help from public funds; their husband, wife or civil partner is not under 18; and they themselves are not under 18. If an applicant s husband or wife has more than one wife or husband, only one will be allowed to join them in the UK. At first, successful applicants will be allowed to stay and work in the UK for two years. Near the end of this time, if these persons are still married (or still civil partners) and intend to continue living together, the applicant can apply for settlement in the UK. BIA will deal with the application for settlement and provide information on what further action needs to be taken. BIA will charge a non-refundable fee for applications to remain indefinitely in the UK. If the applicant and his/her husband, wife or civil partner have been living together outside the UK for four years or more, and the sponsor has been a British Citizen for four years or more, there will be no time limit on their period of stay in the UK. These applicants would immediately be granted 6 The conditions for each category in this section have been taken from the guidance notes for applicants, please see UKvisas website for full text. 7 The Civil Partnership Act 2004 came into operation on 5 December 2005 and enables a same-sex couple to register as civil partners of each other. A civil partnership can be registered in England and Wales in a register office or in approved premises. 12

13 ILE. Those granted ILE will need to have previously entered the UK to take the knowledge of life in the UK test and demonstrate that they meet the English, Welsh or Scottish Gaelic language requirements. Please see pages 28 and 29 for further information on the knowledge of life test and language requirements. They would receive ILE only having taken and passed the test and successfully met the requirements. Applicants in this category who are unable to meet the English language and knowledge of life in the UK requirements may be granted entry for an initial period of two years. Applicants who have lived with their husband, wife or civil partner for less than four years, or whose sponsor has been a British Citizen for less than four years, would need to apply for two years leave to enter, which must be completed before they may apply for settlement (ILR). Fiancé(e)s and proposed civil partners In order for applicants to qualify to join their fiancé(e) or proposed civil partner in the UK, they must show that: their fiancé(e) or proposed civil partner currently lives and is settled in the UK, or they are coming to live permanently in the UK; they plan to marry or register a civil partnership within a reasonable time (usually six months); they plan to live together permanently after they are married or have registered a civil partnership; they have met each other before; there is somewhere for them and their dependants to live until the marriage takes place or a civil partnership is registered, and they will be able to live without help from public funds; they themselves and their dependants can be supported without working or claiming any help from public funds; their sponsor (fiancé(e) or proposed civil partner) is not under 18, on the date of the applicant s arrival in the UK; and they themselves are not under 18, on the date of their arrival into the UK. Successful applicants will be allowed to stay in the UK for six months but without permission to work. When they are married or have registered a civil partnership, they can apply for Further Leave to Remain (FLR) as a spouse for a period of two years which is known as the probationary period. If the FLR application is granted, the applicant will then be allowed to work in the UK. Near the end of this time, an application to settle in the UK can be made. Unmarried or same-sex partners In order for applicants to qualify to join their unmarried or same sex partner in the UK, they must show that: their unmarried or same sex partner currently lives and is settled in the UK, or they are coming to live permanently in the UK; any previous marriage, civil partnership or similar relationship, has permanently broken down; they have been living together in a relationship similar to marriage or civil partnership for two years or more; they have suitable accommodation which is owned or lived in only by themselves and their household, where they can live with their dependants without any help from public funds; 13

14 they can support themselves and any dependants without any help from public funds; they intend to live together permanently; Their sponsor (unmarried or same sex partner) is not under 18, on the date of the applicant s arrival in the UK; they themselves are not under 18, on the date of their arrival into the UK. The Entry Clearance Officer will need to see evidence of a two-year relationship. This may include: documents showing joint commitments, such as bank accounts, investments, rent agreements or mortgages letters linking the applicant and sponsor to the same address, and official records of joint address. At first, successful applicants will be allowed to stay and work in the UK for two years. Near the end of this time, if they are still partners and intend to continue living together, an application can be made to settle in the UK. As with spouses and civil partners, if the applicant and their unmarried or same-sex partner have been living together outside the UK for four years or more, and the sponsor has been a British Citizen for four years or more, there will be no time limit on the period of stay in the UK for such applicants. These applicants would immediately be granted ILE. Again, those granted ILE will need to have previously entered the UK to take the knowledge of life in the UK test and demonstrate that they meet the English, Welsh or Scottish Gaelic language requirements. They would receive ILE only having taken and passed the test and successfully met the requirements. Applicants in this category who are unable to meet the English language and knowledge of life in the UK requirements may be granted entry for an initial period of two years. Children In order for applicants to qualify to join their parent(s) in the UK, the applicants or their parent(s) must show that: the parent(s) live in the UK legally, with no time limit on their stay, or they are applying at the same time as the child; or one parent is living and settled in the UK or is applying for settlement at the same time as the child, and has had sole responsibility for looking after the child; and the parent(s) can support the applicant without help from public funds; the parent(s) have enough accommodation, which they own or live in, where the applicant can live without help from public funds; the applicant is the child of the sponsor parent(s); the applicant is under 18 years of age; and the applicant cannot support him/herself financially in the country of origin, is not married or in a civil partnership and is not living independently of their parents. In the statements above, parent includes a step-parent where the natural father or mother is dead and either the father or mother of an illegitimate child. Adopted children are covered in the next section. 14

15 If both of the applicant s parents are settled in the UK, or if one parent already settled in the UK has sole responsibility for the applicant, they will normally be allowed to stay in the UK permanently from the date that they arrive, by being be granted ILE. If applicants travel to the UK with a parent they will normally be given permission to stay in the UK for the same length of time as their parent is given. A child cannot normally come to live in the UK if one parent is living abroad, unless the parent in the UK has sole responsibility for the child, or if there are special reasons why the child should be allowed to join the parent in the UK. Although the Rules normally require all applications to be decided in the light of the circumstances existing at the time of the decision, an exception to this is made, for dependent children who turn 18 whilst their application is being process, in accordance with paragraph 27 of the Rules. This states that no applicants should be refused entry clearance under paragraphs 296 to 316 of the Rules solely on the grounds that they have become over age between the receipt of the application and the date of the decision. Adopted children In order for applicants to qualify to join their adoptive parent(s) in the UK, the applicants or their adoptive parent(s) must show that: the parent(s) currently live and are settled in the UK legally, with no time limit on their stay; the parent(s) can support the child and provide somewhere to live without needing help from public funds; the applicant cannot support him/herself financially, is not married and not living independently away from the parents; the applicant is under 18 years of age; the applicant was adopted when both parents lived together abroad or when one or the other parent was settled in the UK; the applicant has the same rights as any other child of the adoptive parents; the applicant was adopted because their birth parents were unable to care for him/her and there has been a full and genuine transfer of parental responsibility; the applicant has broken all ties with their birth family; and the applicant was not adopted just to make it easier to enter the UK. It is now an offence for prospective adoptive parents to bring children into the UK to adopt them, unless they have met all the legal requirements of the adoption Acts & Regulations. The penalty for not following the legal requirements is an unlimited fine or up to 12 months imprisonment (or both). A foreign adoption order will be recognised in the UK only if: (a) it was made in a country that is included in the Adoption (Designation of Overseas Adoptions 8 ) Order 1973 (such a country is known as a designated country) or (b), it was made in a Hague Convention country and made specifically under the terms of the Hague Convention on inter-country adoption. 8 See Annex A for full list. 15

16 If the child was adopted in a designated country, or under the terms of the Hague Convention in a Hague Convention country, and adoptive parents are settled in the UK, or if the sponsor alone is responsible for the child, the child will normally be allowed to settle in the UK (be granted ILE) from the date he or she arrives. If the child has not been adopted in a designated country, they will normally be allowed to stay in the UK for 24 months so the adoption process can continue through the UK courts. Parent, grandparent and other dependent relative A widowed parent or grandparent aged 65 or over, or parents travelling together (at least one of whom is 65 or over) or grandparents travelling together (at least one of whom is 65 or over), may qualify if: they are completely or mainly financially dependent on children or grandchildren living and settled in the UK; they have no other close relatives in their country of origin (or country where they are legally living) to help them; their children or grandchildren can support them without needing help from public funds; and their children or grandchildren have enough accommodation, which they alone own or live in, where they can accommodate their parent(s) or grandparent(s) without needing any help from public funds. A parent or grandparent under the age of 65 may qualify if: they are living in the most exceptional compassionate circumstances; they are completely or mainly financially dependent on children or grandchildren living and settled in the UK; they have no other close relatives in their country of origin (or country where they are legally living) to help them; their children or grandchildren can support them without needing help from public funds; and their children or grandchildren have enough accommodation, which they alone own or live in, where they can accommodate their parent(s) or grandparent(s) without needing any help from public funds. Dependants who are aged over 18 and have a parent settled in the UK, or a sister, brother, aunt, uncle or any other relative settled in the UK, may qualify if they meet all of the conditions listed directly above and are living alone in their country of origin (or country where they are legally living). A parent, grandparent or other dependent relative who meets all requirement outlined above, will be granted ILE. 16

17 c) Policy/ Practice with regard to specific Articles in Directive 2003/86/EC. This section sets out the policy and practice with regard to each of the Articles in Directive 2003/86/EC on family reunification. Article 5 9 Does the dependant or the sponsor submit the application for family reunification and where should it be submitted (country of origin or your Member State)? Dependants applying for limited leave to enter the UK or ILE need to submit their application form in their country of origin, or the country where they live legally, via the British Embassy, Consulate or High Commission in that country. For example, someone applying from the United States for leave to enter to join a sponsor who is present and settled in the UK must do so via the British Consulate-General in Chicago, Los Angeles or New York. Applications can be made in a number of ways, for example by post, by courier, in person and online. The visa section at the British Embassy, Consulate or High Commission will provide information on the ways in which applications can be made; for example, some visa sections will only accept applications made online. 10 If applicants are unable to make an online application they will need to fill in a visa application form (VAF 2 - Settlement). This can be downloaded from UKvisas website, or obtained free of charge from their nearest British mission overseas where there is a visa section. Dependants may also have to attend an interview during the application process. Dependants applying for ILR may submit their application within the UK when they are near the end of their probationary period of leave. In-country applications for ILR at this stage will be decided by BIA Caseworkers within the UK. Provided that all the relevant conditions for family reunification ILR under their route of entry have continued to be met, Caseworkers will grant dependants ILR. If all the conditions are not met (for example, if the relationship between the dependant and the sponsor has broken down) the application for ILR will be refused. On having been granted settlement (either ILE or ILR) applicants are entitled to settle in the UK and their status is no longer linked to or dependent on their sponsor. An application for a visit visa or EEA family permit can be made at any full service visa-issuing office. Those applying from within the EEA will need to show that they are living legally in an EEA Member State. 'Living legally' includes having a visit visa for the EEA Member State. For all other types of visa, applications should be made in the country of which the dependant is a national or lives legally. In some countries, those applying for a visa to stay in the UK for more than six months may need to be tested for active tuberculosis before the application can be accepted Please see Annex E for details of Article UKvisas website provides information on whether or not applications can be made online. 11 This information was taken from the guidance notes for applicants. Please see the UKvisas website for full text. 17

18 In line with article 5: Indicate who are the main actors involved, for example, in the examination and application (and, if relevant, the visa)? Who issues the working permit? Are there civic society organisations involved (e.g. NGOs)? Leave to enter the UK through the family route involves a sponsor who is present and settled in the UK, an applicant (in the categories set out in the previous sections) and the UK Government authorities. The granting of applications is ultimately dependent on the Secretary of State being satisfied that each of the applicable requirements for the specific case, are met. In practice, the entry visa would be issued by UKvisas, as detailed in the previous section of this report. Applicants should then have the appropriate entry clearance documents to demonstrate the acceptance of their application. Airlines have a responsibility to ensure that passengers have the correct and valid documentation before they are allowed to board the flight. These documents will then need to be presented to Immigration Officers working at UK Border Control (part of the BIA). In some cases, documents will also be checked at the port of departure to the UK by Airline Liaison Officers (BIA). Immigration Officers will then confirm that applicants have the correct clearance papers and check that the person should be allowed to enter the UK, as noted on page 9. Applicants are granted either ILE or leave to enter for a set probationary period. For those granted limited leave to enter, once the probationary period has been completed they may apply for ILR. BIA Caseworkers within the UK will decide whether applicants for ILR at this stage have met the terms required in order to be granted settlement. How does the Member State assess the family tie (e.g. verification of documents, DNA sampling, specific checks and inspections when there is reason to suspect a fraud or partnership of convenience)? The UK makes use of various checking procedures to assess the family tie for family reunification applications. These procedures are outlined below. DNA Testing 12 When an entry post receives an application for family reunification purposes, the Entry Clearance Officer (ECO) at UKvisas will in the first instance try to ascertain the bona fides of the application in the usual way using documentary and any other evidence available. If, after a short interview (or on the basis of documentary assessment) the ECO decides that substantial doubt exists about a relationship, the case should be referred to the Entry Clearance Manager (ECM) for authority to offer the applicant(s) and/or the sponsor an opportunity to take a DNA test. Although ECMs may delegate this responsibility to ECOs they retain overall responsibility for the testing regime. The UK Government s DNA Scheme is funded and administered by UKvisas and allows DNA relationship testing to be carried out on entry clearance applicants. A British-based firm is contracted to carry out the tests. Although the contract is re-tendered every three years under joint scrutiny by the Foreign and Commonwealth Office and the Home Office, the cost of DNA testing falls entirely to UKvisas. Applicants may alternatively commission privately funded DNA tests if they wish to do so. 12 This information was taken from the Diplomatic Service Procedures (volume 1, chapter 14, point 14.21). Please see UKvisas website for full text. 18

19 DNA tests arranged through the Government Scheme are provided free of charge to first time settlement applicants, where the ECO considers it would be desirable to aid the decision-making process. Tests are undertaken only with the agreement of the applicant(s) and sponsor, and the authority of an ECO. DNA tests are not compulsory and persons cannot be required to take a test against their will. If an applicant declines a test, that alone will not be grounds for refusing the application, although an ECO should record the fact together with the reason given (if any) by the applicant for declining the offer. Only the family members about whose claimed relationships the ECO has doubts should be offered a test. The DNA testing scheme is open to all Entry Clearance Posts. The DNA result reports will state the mathematical likelihood that the applicant(s) and sponsor are related as claimed as opposed to being unrelated, or related as the next closest family member. If the parties are not related as claimed, the report will indicate wherever possible the likely nature of the relationship. The ECO must assess the relationship(s) on the balance of probabilities from all the available evidence. Where DNA evidence is the only evidence available to the ECO, a report that suggests the applicants are related as claimed is considered sufficient. Where other evidence is available to the ECO, the strength of the DNA results is considered in conjunction with this. If the relationship between a sponsor and an applicant is in doubt, when a BIA Caseworker is assessing an in country application (an application made from within the UK), the sponsor and applicant must arrange and fund their own test from a company whose tests are accepted as valid for use in family law cases. Use of DNA testing results Unrelated to both parents If a child is unrelated to the claimed parents, the application should normally be refused. One or other of the claimed parents is a relative If one of the alleged parents is found to be a second degree relative such as an aunt or uncle and the child has been brought up as a member of the family unit, the ECO should review whether there are serious and compelling family or other reasons for considering the child's application under paragraph 297 (i)(f) of the Rules. Paragraph 297 of the Immigration Rules lays out the conditions which must be met in order for a child to join parent(s) present and settled in the UK, as outlined in section 3.1 (b) of this report. Section (i)(f) of paragraph 297 outlines the following condition: one parent or a relative must be present and settled in the UK or be admitted on the same occasion for settlement and there must be serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements must have been made for the child's care. 13 Child not related to the claimed mother If a child is found not to be related to the claimed mother it is necessary to establish whether the child was born to another wife (particularly if the child is claiming citizenship by descent) and if so, whether the child lives with the natural mother or the claimed mother. Depending on circumstances, the provisions of one of the sub-paragraphs of Rules paragraph 297(i) may be appropriate. The subparagraphs of the Rules paragraph 297(i) outline the circumstances under which a child may seek to accompany or join their parent(s) Please read paragraph 297 of the Immigration Rules for full details. 19

20 In a case where the DNA report shows that the child may have been born out of a previously undisclosed earlier marriage, it may be necessary to investigate questions of polygamy and legitimacy. Where the child's natural mother is not seeking entry or does not qualify for admission, the sponsor (i.e. the father) would normally have to demonstrate that he has exercised sole responsibility for the child's upbringing (as stated in the Rules paragraph 297(i)(e)) 11. Child not related to claimed father There may be any number of reasons why a claimed father may not be a child's natural father including the death of the first husband, rape or adultery. ECOs must handle such cases with sensitivity as it may not be obvious whether the husband or other family members know of the true relationship and there may be serious repercussions for the wife and child if the information is disclosed. Under these circumstances decisions are made on a case by case basis. Illegitimacy Where DNA evidence indicates that a child may be illegitimate, the ECO will try to establish the truth of the family circumstances by interviewing the child's mother as discreetly and sensitively as possible. Referring the case to the Home Office to interview the sponsor should be avoided. If no information can be elicited from the mother, the best way forward may be to seek information from the sponsor's representatives (depending on whether they are known to the ECO to be willing to respect the confidence of all parties). If it appears that an illegitimate child has been brought up as a child of the family, it will normally be appropriate to admit the child under paragraph 297(i)(f) 11 (as discussed above). The fact that the sponsor may not be aware that the child is not his natural child would not preclude entry clearance. The ECO does not routinely disclose information about the DNA report to the sponsor or other family members in cases involving the illegitimate children. However under the Data Protection Act applicants and sponsors have a right to see personal information about themselves, which BIA or UKvisas may hold. If this information is requested, the requestor should normally be referred to their legal representatives. If the sponsor does not have legal representation and requests a copy of the DNA report then he/she is be asked to submit the request in writing with proof of identity, normally a copy of his/her passport. If the results also relate to a family member over the age of 18 then his/her consent to release the information will also be required. Copies of the report are not given to other family members who have not been tested. Validity of Marriage Under Section 11 of the Matrimonial Causes Act 1973 a marriage celebrated in the UK on or after 31 July 1971 shall be void on the following grounds. It is not a valid marriage under the provisions of the Marriage Acts 1949 to 1970 where: the parties are within the prohibited degrees of relationship; or either party is under the age of 16; or the parties have intermarried in disregard of certain requirements as to the formation of marriage. At the time of the marriage either party was already lawfully married. The parties are not male and female respectively. In the case of an actually polygamous marriage entered into outside England and Wales, either party was at the time of the marriage domiciled in England and Wales. A void marriage is one that is deemed never to have existed, and in such cases a decree of nullity does not alter the status of the parties but is merely a declaration that they were never lawfully 20

21 married. This is not the same as a decree of nullity of a voidable marriage which must be accepted as having existed until the date of the decree. Prior to 1 August 1971 there was no difference between void and voidable marriages because any annulment obtained before 1 August 1971 would render the marriage as being void regardless of the grounds. 14 According to section one 15 (spouses) of the Immigration Rules, where there are grounds for suspecting that the marriage is not genuine, further enquiries may be necessary. Immigration Caseworkers will target those cases where: there is real reason to doubt from the evidence to hand that the marriage is not regarded as valid in the UK (as outlined above); there is an allegation or other information suggesting that the marriage may not be genuine, that the marriage is a forced marriage or the couple are not living together; having been admitted as a fiancé(e), the applicant has married someone else. Further investigations would not normally be warranted where there is no evidence to support any doubts. Leave will be granted in cases where some doubts exist but the evidence is considered to be insufficient to refuse or to justify making further enquiries. However, where leave is granted but there is good reason to believe that the marriage will not survive the officer will set the reasons for doubts on the file or GCID 16, which will then be flagged. Caseworkers can then consider any subsequent application for settlement in the light of the information available and decide what enquiries, if any, are appropriate. It is not sufficient to simply minute the file or GCID to the effect that settlement should not be granted without full enquiries. In some cultures it is not the practice for a husband and wife to live together until a religious ceremony has taken place (even if they have been through a valid civil ceremony). Receipt of a religious and civil marriage certificate may, where there is no evidence to the contrary, be taken as sufficient evidence of the intention of the couple to live together. It should be noted that in the UK where a couple undergo a religious marriage in a building registered by law for the purpose of marriage they are not required to undergo a separate civil ceremony. Where this is the case the couple will be issued with the normal green style marriage certificate as well as a religious certificate. 17 Where a religious marriage certificate has not been submitted, Caseworkers may, if there is reason to believe that the couple are not living together, request sight of one. In some cases, however, the couple may claim to have gone through a religious ceremony without the issue of a religious marriage certificate. Such a couple will be asked to provide a statement confirming that they are living together as husband and wife, together with other evidence, such as wedding invitations etc; showing that a religious ceremony has taken place. If there is no reason to doubt that the marriage is genuine then, provided the key points are satisfied, leave to remain will be granted for 2 years. The applicant will be advised that s/he may apply not earlier than 28 days before the end of the initial 2 year period, for indefinite leave to remain in the UK on the basis of the still subsisting marriage. 14 This information has been taken from section 4.1 of Annex B of the Immigration Rules. 15 Please see section one of the Immigration Rules for full details. 16 GCID - General Settlement Case Information Database 17 Please see Annex B, of the Immigration Rules in full for further information. 21

22 Certificate of Approval 18 People subject to immigration control who wish to get married or register their civil partnership in the UK may need to apply for a Certificate of Approval (COA) from the Home Office. The COA rules do not apply to applicants within the following categories. British citizens. EEA nationals. Family member of EEA nationals (who may be third country nationals). Persons who have a certificate of entitlement giving them the right of abode in the UK. Persons who are not subject to immigration control. Those coming to the UK from overseas to get married or register a civil partnership, must have a visa as either a fiancé(e) or proposed civil partner or marriage visitor or civil partnership visitor in order to give notice to marry or register their civil partnership to a registrar. Those already in the UK will need to either have settled status in the UK, or apply to the Home Office for a COA before giving notice to marry or register their civil partnership to a registrar. Those who only want to visit the UK to get married or register their civil partnership, but do not plan to stay for more than six months will need to apply for a marriage or civil partnership visitor visa or entry clearance. These rules apply, even if the applicant is a national of a country where there is normally no need for a visa to enter the UK. Applicants will be unable to give notice to marry or register their civil partnership to a registrar without the correct valid sticker in their passport or travel document. An application for a visa or entry clearance should be made at a British Embassy, Consulate, or High Commission in the applicant s country of origin, or in the country overseas where they are normally legally resident. Whether applicants are overseas or already in the UK, they will need to give notice to marry or register their civil partnership to a registrar at one of a limited number of register offices designated for this purpose. Changes to the scheme following the High Court judgement of 10 April 2006 Following a judgement in the High Court on 10 April 2006, amendments were introduced for applicants who had insufficient leave to enter or remain in the UK to meet the published COA criteria when applying. Under these new procedures, applicants who have insufficient leave to enter or remain at the time of applying for a COA may be asked to submit further information in support of their application to enable BIA to be satisfied that the proposed marriage or civil partnership is genuine. Changes to the Certificate of Approval scheme following the Court of Appeal Judgement on 23 rd May 2007 A judgement in the Court of Appeal on 23 May 2007 declared the pre-april 2006 original COA scheme unlawful. The Home Office is in the process of petitioning the House of Lords for permission to appeal against the Court of Appeal judgement. 18 This information has been taken from the Immigration Directorates Instructions, chapter 1, section

23 Whilst it is seeking to appeal against the Court of Appeal Judgement, the Home Office is currently considering that judgement with a view to ensuring that the scheme complies fully with the Court of Appeal judgement. The rules on COAs do not currently apply for those who plan to get married at an Anglican Church in England or Wales, after marriage bans or an ecclesiastical licence. However the policy of excluding these religious ceremonies from the (COA) scheme was declared unlawful by the High Court. The Government has indicated it will change the rules to bring such marriages within the scope of the scheme. The date of this change has not yet been determined. Giving notice to marry or register a civil partnership at a designated register office As noted earlier where applicants are subject to immigration control, they and the person they plan to marry or register their civil partnership with, need to give notice to marry or register their civil partnership at a designated register office. In England and Wales, both parties must have at least seven days residence in a registration district before they can give notice to marry or register their civil partnership. Those notices can be given at any designated register office, but both parties must attend together. In Scotland and Northern Ireland, the notice to marry or register a civil partnership can be given by post, so applicants will not normally have to attend in person, but may be asked to attend the Registrar's Office before the wedding or the civil partnership. The COA must be surrendered to the registrar when applicants give notice to marry or register their civil partnership. Those planning to marry or register their civil partnership in Scotland or Northern Ireland and who are travelling from abroad, will need to send a photocopy of the sticker in their passport to the registrar along with their marriage or civil partnership notice papers if giving notice by post. After giving notice to marry or register a civil partnership, applicants have to wait 15 full days before the wedding or registering of their civil partnership can take place in England and Wales (14 days in Scotland and Northern Ireland). The notice to marry or register a civil partnership is valid for one year from the date on which it was given in England, Wales and Northern Ireland, and for three months in Scotland. The marriage or civil partnership must take place within this time, or applicants will have to apply for another COA and give notice to marry or register their civil partnership again. How does a Member State recognise a marriage? Marriage taking place in the UK All marriages that take place in the UK must, in order to be recognised as valid, be monogamous and must be carried out in accordance with the requirements of the Marriage Act 1949, as amended by the Marriage Acts of 1970, 1983 and 1994, the Marriage Regulations of 1986 and other related Acts (e.g. the Children Act 1989). A claim to be married in the UK must be supported by a marriage certificate issued by one of the following: Superintendent Registrar; Registrar; Clergyman (of Church of England or Church in Wales); Authorised person of a Non-Conformist Church The General Register Office; 23

24 Secretary of Marriage for a Synagogue; or Registering Officer for the Society of Friends. It must be conducted in a building approved for civil marriages under the Marriage Act of Marriage taking place outside the UK The recognition of any marriage which has taken place outside the UK is governed by the following. Is the type of marriage one recognised in the country in which it took place? Was the actual marriage properly executed so as to satisfy the requirements of the law of the country in which it took place? Was there anything in the law of either party's country of domicile that restricted his/her freedom to enter the marriage? If the answers to the above questions are respectively, "yes", "yes" and "no" then the marriage is valid whether or not it is polygamous; the next section provides further detailed information regarding polygamous marriages. When making an application as a spouse, supporting documentation must be included in order to show the applicant qualifies for entry as a husband, wife or civil partner. If these supporting documents are not included with the application it may be refused. As a guide, the following should be included: Birth Certificate; Marriage Certificate (if the parties are married) or civil partnership certificate (if they have registered a civil partnership); sponsor s Birth Certificate; recent statements or letters from the sponsor s UK employer, bank, local authority or building society to show what support and accommodation will be available for the applicant in the UK; letters from the applicant and sponsor that are relevant to the application; evidence that the sponsor is settled in the UK (this can be a copy of his/her passport or registration certificate that has been confirmed as a true copy, i.e. certified). 19 If the applicant has been married or in a civil partnership before, one of the following documents is also needed: a divorce certificate; a final dissolution order; or the applicant s previous husband's, wife's or civil partner's death certificate. 19 This information has been taken from Annex B of the Immigration Rules. 24

25 Are polygamous marriages recognised and, if so, under what conditions? Whether a marriage is to be regarded as monogamous or polygamous must initially be determined by where the marriage is celebrated. If the law of the country where the marriage takes place prohibits polygamy (as English law does) then all marriages celebrated under that law must be monogamous, regardless of whether a party to such a marriage is permitted to practice polygamy in his country of domicile. Such a person can nevertheless contract a valid marriage in the UK, as long as he is not already married, either in the UK or abroad. Any further marriage contracted in the UK would be void as it would be bigamous. If the country in which the marriage is celebrated permits polygamy, any marriage contracted there by a person whose country of domicile permits him to enter into a polygamous union will be polygamous. The most important aspect of the Rules for polygamous spouses is that it is not the order in which polygamous spouses marry that is crucial but the order in which they go to the UK. According to Annex G of the Immigration Rules (Part 8) 20 the application of a spouse within polygamous marriage for leave to enter/remain in the UK should be refused if the applicant s husband is also married to another woman who has entered the UK since marriage 21 (or been granted a certificate of entitlement in respect of the right of abode in the UK or granted an entry clearance to enter the UK as the wife of the applicant s husband), and the Secretary of State is not satisfied that the applicant was either admitted to the UK before 1 August 1988 for the purpose of settlement as the wife of their husband or that the applicant has been in the UK 19 at any time since their marriage when there was no such other woman living who has entered the UK under the circumstances outlined above. This also applies to women bringing more than one husband to the UK. Children of polygamous spouses If a polygamous spouse is disqualified by the Immigration Act/Rules from entering the UK, any children he or she had by that spouse may not qualify for entry to the UK, depending on the circumstances and in particular the operation of the Legitimacy Act Polygamous spouses entering in their own right A polygamous spouse may have an entitlement to enter the UK in his or her own right - for example as a returning resident. A person who obtained settlement in the UK on the basis of a marriage which has since ended and who travels to another country where s/he enters into an actually polygamous marriage, has the right to return to the UK under Paragraph 18 of the Rules, provided that s/he does so within the 2 year limit. A polygamous spouse may also enter in his or her own right as a visitor or a student, provided of course that he or she meets in full the requirements of the relevant paragraphs of the Rules. Such a spouse will not, however, qualify for entry clearance in a temporary capacity leading to settlement (for example, as a spouse of a work permit holder) if that would result in the formation of a polygamous household in the UK. Termination of previous marriage Even where it is suspected that a divorce of convenience has taken place and that a man, for example, is continuing to live with a previous wife, entry clearance cannot be withheld from a second wife, even if a polygamous household will be created as a result. A polygamous spouse may apply for entry clearance and support the application by claiming that a previous marriage (which 20 Please see Annex G of the Immigration Rules (Part 8) for full text. 21 Other than as a visitor, an illegal entrant, or in circumstances whereby a person is deemed by section 11(1) of the Immigration Act 1971 not to have entered the UK. 25

26 would otherwise disqualify him or her) has been dissolved or terminated by the death of the spouse concerned. ECOs will be wary of death and divorce certificates in such circumstances, especially where non-judicial processes or customary laws are involved. Potentially polygamous marriages Hitherto, potentially polygamous marriages (i.e. a marriage celebrated under a law which permits polygamy) where the spouse is domiciled in the UK are considered invalid under UK law. Potentially polygamous marriages where the husband/wife is domiciled in the UK have been considered valid in UK law since in An amendment to the Matrimonial Causes Act 1973 by the Private International Law (Miscellaneous Provisions) Act has served to legitimate all potentially polygamous marriages where they are, in fact, monogamous. As a result of this amendment to the 1973 Act, in cases where it is clear that the marriage is actually monogamous, potentially polygamous spouses can now be issued with husband/wife entry clearances, subject to the usual criteria of the Rules being met. Such marriages will, however, be deemed to be made void by any subsequent marriage by one of the parties or by an annulment. 22 In line with Article 5: Under which circumstances is the family tie defined as being disrupted? What happens if a family relationship has been disrupted, does the Member State take action? Is there tension regarding the definition of disruption of the family tie between the guidelines of the European Court and national legislation? For the purposes of this report, a disrupted family tie is being regarding as a family tie which has ended, for example if a marital relationship has broken down and ended. All passengers who have an entry clearance endorsed "Husband" or "Wife" are granted leave to enter for two years and advised that, provided the marriage is still subsisting, they can apply to BIA for ILR not earlier than 28 days before their leave is due to expire. If the marriage is not subsisting at the end of this two-year period, ILR will not be granted as the relationship will have been disrupted. Similarly, unmarried or same sex partners in possession of an entry clearance endorsed "ACCOMPANYING/TO JOIN PARTNER [partner's surname and first initial], and who have evidence that the partner is settled in the UK or being admitted on the same occasion for settlement are granted leave to enter for two years and are advised to apply to BIA for ILR (on the basis of the still subsisting relationship) not earlier than 28 days before their leave is due to expire. Passengers who hold an entry clearance as a fiancé(e) or proposed civil partner are granted leave to enter for six months on and are advised to apply to BIA for an extension of stay once the marriage or civil partnership has taken place and before their leave expires. If, within the initial six-month period, a marriage or civil partnership has not taken place, an acceptable reason for this must be provided. If the relationship has broken down, or the applicant has married someone other than their sponsor, ILR would not be granted as the relationship will have been disrupted. 22 This information has been taken from the Diplomatic Service Procedures. Please see point 3.19 for full text. 26

27 Tensions There are some differences between family reunification rights under Community law for EEA nationals (Directive 2004/38/EC) and UK immigration provisions: definitions of family members are different (Note Article 2 of directive) and include the concept of extended family members (Article 3). The UK s definition of family members is much tighter than those outlined in Directive 2004/38/EC (regarding free movement of EU nations and their family members). The UK defines children (for the purpose of joining sponsors as family members) as being under the age of 18, whereas Directive 2004/38/EC defines children as being aged below 21. The UK also has tighter rules regarding extended family members. A specific area of discrepancy was highlighted in from the European Court of Justice case of Surinder Singh: nationals of a Member State who go with their non-eea family members to another Member State to exercise a Treaty right in an economic capacity, will on return to their home state, be entitled to bring their non-eea family members to join them under EC law. For example, this would apply to a British national who has lived and worked in Germany with his/her non-eea national spouse/children and is now returning to the UK with his/her family. In UK law, the rights are more limited. The Surinder Singh judgement is incorporated into the 2006 regulations in Regulation 9, and is confined to those cases where a British national has worked or been self-established in an EEA State. As for non-eea national family members generally, the non-eea national family members of such a British national will only have a right to return to the UK with him/her under the 2006 Regulations if they can demonstrate lawful residence in a Member State. The free movement Directive is also causing concern in one respect, i.e. that it is not possible for Member States to charge for issuing free movement documentation, because this is seen as confirmation of status, rather than granting status. This means that, although the number of applications under the free movement directive is increasing, there is no income for dealing with these applications and an additional burden is therefore being placed on the services of BIA. Under which circumstances/conditions are dependants allowed to enter a Member State at the same time as the sponsor? In general, dependants entering the UK at the same time as the sponsor would not be recorded within the Control of Immigration Statistics figures for those entering within the Family Formation and Reunion category. Dependants are allowed to enter the UK at the same time as their sponsor provided that their sponsor is present and settled in the UK, but has left to accompany them into the UK. It would also be possible for a sponsor who is present and settled in the UK to leave the country temporarily and return to the UK to join their dependant, provided that they also intend to live together. 27

28 Article 7 23 Does the Member State require the sponsor to have adequate accommodation, sickness insurance and resources (reference Article 7.1 a-c Directive)? UK immigration rules regarding families require that: there will be adequate accommodation for the parties and any dependants without recourse to public funds, in accommodation that they own or occupy exclusively; and the parties will be able to maintain themselves and any dependants adequately without recourse to public funds. There is no set minimum income, as each case is considered individually. The Caseworker / Entry Clearance Officer will look at the funds available to the sponsor and use discretion to decide whether these would be sufficient to support the applicant(s) without recourse to public funds. Medical insurance is not required; family members are entitled to healthcare and education and can make use of these services before settlement is granted. This is also the case for dependants joining a sponsor who has been granted refugee status. Does the Member State require integration measures in the case of family reunification? For the dependant? For the Sponsor? What kind of integration measures does the Member State require? The UK s integration requirements for dependants applying to join a sponsor who is present and settled in the UK are outlined in Part 8 of the Immigration Rules. The Rules require applicants to have sufficient knowledge of English, Welsh or Scottich Gaelic language and sufficient knowledge about life in the UK, unless s/he is under the age of 18 or aged 65 or over at the time s/he makes the application. In December 2006, the Immigration and Nationality Directorate (since 1 st April 2007, the Border and Immigration Agency) announced that all those seeking to live in the UK permanently would have to demonstrate knowledge of English, Welsh or Scottish Gaelic and of life in the UK 24 before being granted settlement. 25 There are two ways by which people can demonstrate they meet the language and knowledge of life requirements for settlement. Those with language ability at or above English for Speakers of Other Languages (ESOL) Entry 3 may take a specially developed short test. Tests are taken on a computer at one of around 100 Life in the UK Test Centres in the UK and consist of 24 questions based on information from the handbook Life in the UK: A Journey to Citizenship. Those with English language skills below ESOL Entry 3 may meet the requirements by successfully progressing from one ESOL level to the next on a language course involving learning materials which incorporate information about life in the UK. A person who successfully completes one of these programmes will not have to take separate tests in English and knowledge of life in the UK. Those who enter the UK through a family reunification route are required to pass the Life in the UK test, and fulfil the English, Welsh or Scottish Gaelic language requirements when they apply for 23 Please see Annex E for details of Article Further information regarding this citizenship test can be found via the Life in the UK test website. 25 For further information of this announcement please see Home Office press release of December

29 settlement, once their probationary period is complete, unless they fall into one of the exempt categories. Applicants aged under 18 or 65 or over or who have a physical or mental impairment may not have to meet with the language requirement or the knowledge of Life in the UK requirement. Similarly, applicants who have significant physical and/or mental health condition(s) or incapacity may be exempt if their condition would prevent them from studying for or taking the knowledge test, or from studying for an ESOL qualification. Exemption on these grounds will be given only in exceptional cases. Those applying under the following family reunification categories do not need to satisfy the knowledge of life in the UK or language requirements. Spouses of foreign and commonwealth citizens on discharge from HM Forces (including Gurkhas). Spouses in this category would be subject to the same qualifying period (of two years) as other spouses entering the UK through family reunification, unless they can prove that the marriage has been subsisting outside the UK for four years or more. Bereaved Spouses, Unmarried Partners and Civil Partners. Parents/Grandparents/Other Dependant Relatives - applications made under Paragraph 317 of the Immigration Rules 26 who would not already be exempt owing to their age and/or the most exceptional compassionate circumstance under which they are being granted ILE. European Nationals and their non-eea family members, making an application under the Free Movement of Persons provision (i.e. not based on the UK Immigration Rules). People in these additional categories will, however, have to meet the knowledge of English and UK life requirements if they apply for citizenship, unless they then qualify for exemption on age, physical or mental health or incapacity grounds. Introducing language and knowledge of life requirements for applicants wishing to settle in the UK brings the requirements for those looking to settle in the UK into line with the requirements for those applying for British nationality. The aim of these provisions is to help those wishing to settle in the UK or become British citizens to learn English and have practical knowledge of life in the UK and an understanding of our democratic traditions to aid integration and help them work, contribute and participate in society. The aim of introducing knowledge of life and language testing at settlement stage is to ensure that migrants have an understanding of life in the UK and the requisite skills to allow them to play a full and active part in society. Article 8 27 Does the Member State require the Sponsor to have stayed lawfully in its territory for a certain period before having his/her family members join him/her? Sponsors will need to have lived lawfully in the UK usually for a period of five years (this may vary depending on their immigration status) in order to have been granted settlement. 26 Please see paragraph 317 of the Immigration Rules for further details. 27 Please see Annex E for details of Article 8. 29

30 28 29 Article 9 Did the Member State confine the application of Chapter V of the Directive to refugees whose family relationships predates their entry? The rights of refugees in the UK regarding family reunification and, since 30 August 2005, those persons granted Humanitarian Protection for five years, are as follows. 29 The families of asylum seekers, whose claims have not been determined or have been refused, do not qualify to join them in the UK for family reunion purposes. If a person has been recognised as a refugee, only pre-existing families are eligible for family reunion, i.e. the spouse, civil partner, unmarried or same sex partner and minor children who formed part of the family unit prior to the time the sponsor sought asylum. Other members of the family (e.g. elderly parents) may be allowed to come to the UK if there are compelling, compassionate circumstances (see below). The parents and siblings of a child who has been recognised as a refugee are not entitled to family reunion. Such applications are considered under the criteria above, i.e. there must be compelling, compassionate circumstances in order for the family to be granted entry to the UK. Family reunion may be refused if family members fall within the terms of one of the exclusion clauses in the 1951 UN Convention, which states that an individual has not: committed a crime against peace, a war crime or a crime against humanity; committed a serious non-political crime; been guilty of acts contrary to the purposes and principles of the United Nations. If a person has been recognised as a refugee or has been granted five-year Humanitarian Protection in the UK, family members are normally granted status and leave in line with them. However, it may not always be possible to recognise the family abroad as refugees - e.g. they may have a different nationality to the sponsor or they may not wish to be recognised as refugees. However, if they meet the criteria set out above, they should still be admitted to join the sponsor. The sponsor is not expected to meet the usual maintenance and accommodation requirements of the Immigration Rules, but the spouse/civil partner and dependants must show an intention to live together permanently. Spouses or civil partners who married or entered into a civil partnership after the sponsor came to the UK to seek asylum must meet the normal spouse/civil partner settlement requirements as set out in the Immigration Rules (Part 8). It follows therefore that any "post-flight" minor dependants must also qualify under the relevant "dependant" paragraphs of the Rules. This applies where the sponsor has refugee status and indefinite leave to remain. 30 Dependent children over the age of 18 and other dependent relatives (e.g. mother, father, brother, sister) do not qualify for Family Reunion under this section of the Rules. However, if there are compelling compassionate circumstances, which warrant consideration of the application "outside the Rules, ECOs have discretion to refer applications to BIA for a decision on compassionate grounds. However, ECOs must be satisfied that the applicant was genuinely dependent on the sponsor before his/her flight to seek asylum. 28 Please see Annex E for details of Article This information has been taken from the volume 1, chapter 16 of Diplomatic Service Procedures. 30 Part 8 of the Immigration Rules does not apply to those with 5 years limited leave. Policy on post flight relationships is under review for Refugees who have been granted 5 years limited leave and for those granted Humanitarian Protection with 5 years limited leave. 30

31 If there are no compelling compassionate circumstances, which warrant a referral to BIA, other dependent relatives should be considered under paragraph of the Rules, which lays out the criteria that must be met by parents, grandparents and other dependent relatives of persons present and settled in the UK as discussed in section 3.1(b) of this report. This applies where the sponsor has refugee status and indefinite leave to remain. Article What choices did the Member State make regarding the options it had in this article? Neither refugees nor their family members need to provide evidence that they will not need to access public funds in order for the applicant to be granted leave to enter as a family member. This is the case provided that the relationship was existing before the sponsor fled to seek asylum and subsequently granted refugee status. This also applies to cases where the sponsor has been granted Humanitarian Protection (from 30 th August 2005), as these cases are treated in the same way as those where the sponsor is a refugee. Spouse or civil partner The requirements to be met by a person seeking leave to enter or remain in the UK as the spouse or civil partner of a refugee are that: the applicant is married to or the civil partner of a person granted asylum in the UK; the marriage or civil partnership did not take place after the person granted asylum left the country of his former habitual residence in order to seek asylum; the applicant would not be excluded from protection by virtue of article 1F of the United Nations Convention and Protocol relating to the Status of Refugees if s/he were to seek asylum in his/her own right; each of the parties intends to live permanently with the other as his or her spouse or civil partner and the marriage or partnership is subsisting; and if seeking leave to enter, the applicant holds a valid UK entry clearance for entry in this capacity. Limited leave to enter the UK as the spouse or civil partner of a refugee may be granted provided a valid UK entry clearance for entry in this capacity is produced to the Immigration Officer on arrival. Limited leave to remain in the UK as the spouse or civil partner of a refugee may be granted provided the Secretary of State is satisfied that each of the requirements above is met. Unmarried or same-sex partner The requirements to be met by a person seeking leave to enter or remain in the UK as the unmarried or the same-sex partner of a refugee are that: the applicant is the unmarried or same-sex partner of a person granted asylum in the UK on or after 9th October 2006; the parties have been living together in a relationship akin to either a marriage or a civil partnership which has subsisted for two years or more; 31 Please see the Immigration Rules to read paragraph 317 in full. 32 Please see Annex E for details of Article

32 the relationship existed before the person granted asylum left the country of his/her former habitual residence in order to seek asylum; the applicant would not be excluded from protection by virtue of paragraph 334(iii) 33 of the Immigration Rules or article 1F of the Geneva Convention if s/he were to seek asylum in his/her own right; each of the parties intends to live permanently with the other as his or her unmarried or same-sex partner and the relationship is subsisting; and if seeking leave to enter, the applicant holds a valid UK entry clearance for entry in this capacity. Limited leave to enter the UK as the unmarried or same-sex partner of a refugee may be granted provided a valid UK entry clearance for entry in this capacity is produced to the Immigration Officer on arrival. Limited leave to remain in the UK as the unmarried or same sex partner of a refugee may be granted provided the Secretary of State is satisfied that each of the requirements above is met. Child The requirements to be met by a person seeking leave to enter or remain in the UK in order to join the parent who has been granted asylum in the UK are that the applicant: is the child of a parent who has been granted asylum in the UK; is under the age of 18; is not leading an independent life, is unmarried and is not a civil partner, and has not formed an independent family unit; was part of the family unit of the person granted asylum at the time that the person granted asylum left the country of his/her habitual residence in order to seek asylum; would not be excluded from protection by virtue of article 1F of the United Nations Convention and Protocol relating to the Status of Refugees if s/he were to seek asylum in his/her own right; and if seeking leave to enter, holds a valid UK entry clearance for entry in this capacity. Limited leave to enter the UK as the child of a refugee may be granted provided a valid UK entry clearance for entry in this capacity is produced to the Immigration Officer on arrival. Limited leave to remain in the UK as the child of a refugee may be granted provided the Secretary of State is satisfied that each of the requirements above is met. 34 Article What is the duration of the first residence permit granted to the dependant? As the UK does not issue residence permits, the information provided below states the period of leave initially granted to the applicant, which must be completed before they can apply for ILR. Fiancé(s)s and proposed civil partners Successful applicants will be allowed to stay in the UK for six months but without permission to work. When they are married or have registered a civil partnership, they can apply for a two-year 33 Please see paragraph 334(iii), part 11 of the Immigration Rules for full details. 34 This information has been taken from Part 11 of the Immigration Rules. Please see paragraphs 352A-E for full text. 35 Please see Annex E for details of Article

33 extension to their visa and, if the application is granted, will then be allowed to work. Near the end of this time, an application for ILR can be made. Spouses and civil partners At first, successful applicants will be allowed to stay and work in the UK for two years. Near the end of this time, if these persons are still married and intend to continue living together, they can apply to stay permanently in the UK. If applicants and their husband, wife or civil partner have been living together outside the UK for four years or more, and sponsor has been a British citizen for four years or more, there will be no time limit on the period of stay in the UK for such applicants. Unmarried and same sex partners: At first, successful applicants will be allowed to stay and work in the UK for two years. Near the end of this time, if they are still partners and intend to continue living together, an application can be made to stay in the UK permanently. If the applicant and unmarried or same-sex partner have been living together outside the UK for four years or more, the applicant will be granted ILE when the visa is issued and there will be no time limit on how long s/he can stay in the UK. Children: If both of the applicant s parents are settled in the UK, or if one parent, already settled in the UK, has sole responsibility for the applicant, the child will normally be allowed to stay in the UK permanently from the date that they arrive, by being granted ILE. If an applicant travels to the UK with a parent, he/she will normally be given permission to stay in the UK for the same length of time as his/her parent was given. For example, if his/her parent is granted limited leave to enter to join a spouse, the child will be granted leave to enter in line with his/her parent, and provided that his/her parent successfully completes the probationary period, both parent and child will be granted ILR at the end of this period. Adopted Children: If the child was adopted in a designated country, or under the terms of the Hague Convention in a Hague Convention country, and the adoptive parents are settled in the UK, or if the sponsor alone is responsible for the child, the child will normally be allowed to settle in the UK (be granted ILE) from the date he or she arrives. If the child has not been adopted in a designated country, they will normally be allowed to stay in the UK for 24 months so the adoption process can be completed through the UK courts. For parents, grandparents or other dependent relatives: Dependants within this category who have their applications accepted will be granted ILR, and would therefore have no time limitations placed on their stay. 33

34 Article What choices towards the access of a dependant to employment and self-employed activity has the Member State made? Successful applicants who enter as spouses or civil partners or unmarried or same sex partners will initially be allowed to stay and work in the UK for two years. Those entering as fiancé(e)s or proposed civil partners will initially be allowed to stay in the UK for six months but without permission to work. Once the fiancé(e) or proposed civil partner and the sponsor are married or have registered a civil partnership, applicants can apply for a two-year extension to their visa and, if the application is granted, will then be allowed to work. In line with article 14: Do dependants receive specific rights with regard to (social) benefits, consolidation of residence. If so, do they have to reside in the Member State for a certain amount of time before they can apply for these benefits? Are there any other conditions? Applicants must show that there will be adequate accommodation for the parties and any dependants without recourse to public funds in accommodation which they own or occupy exclusively; and the parties will be able to maintain themselves and any dependants adequately without recourse to public funds. 37 The following is a list of those benefits that are classified, for immigration purposes, as public funds. Income-based jobseeker's allowance Income support Child tax credit Working tax credit A social fund payment Child benefit Housing benefit Council tax benefit State pension credit Attendance allowance Severe disablement allowance Carer s allowance Disability living allowance An allocation of local authority housing Local authority homelessness assistance Public funds do not include the benefits based on National Insurance contributions, such as the following. Contribution-based jobseeker's allowance 36 Please see Annex E for details of Article This information has been taken from the Border and Immigration Agency s application information. 34

35 Incapacity benefit Retirement pension Widows benefit and bereavement benefit Guardian s allowance Statutory maternity pay Health care and education also do not count as public funds and family members are entitled to these services and may make use of them before they are granted settlement. Dependants joining a sponsor who has been granted refugee status will also be eligible for free health care and education. Article When does the Member State entitle a dependant (upon application) an autonomous residence permit (independently from the sponsor)? Once applicants are granted settlement (either ILE or ILR) they may stay in the UK with no restrictions and no time limit. Their immigration status is no longer dependent on their relationship with the sponsor once settlement has been granted. The conditions (including duration of residence) for settlement vary by family reunification category and have been explained in detail in earlier sections of this report (pages 12 to 16). Article When does the Member State reject an application for entry and residence for the purpose of family reunification, or, if appropriate, withdraw or refuse to renew a dependant s residence permit? Applications are refused in cases where the requirements for entry outlines in the appropriate section of the Immigration Rules for Family Members (Part 8) 39 or Asylum (Part 11) 40 are not all fulfilled. These requirements are explained in earlier sections. Article Are there national regulations for the case described in this article? Article 17 states: Member States shall take due account of the nature and solidarity of the person s family relationships and the duration of his/her residence in the Member State and of the existence of family, culture and social ties with his/her country of origin where they reject an application, withdraw or refuse to renew a residence permit or decide to order the removal of the sponsor or members of his family. The nature and solidarity of family relationships are taken into full account when considering applications made by family members of sponsors present and settled in the UK. Consideration is 38 Please see Annex E for details of Articles 15, 16 and For full details please see Immigration Rules Part For full details please see Immigration Rules Part

36 given to whether the relationship is subsisting. Where there is doubt as to whether a family tie is of the nature described in the application, DNA testing can be offered when relevant. The duration of the dependant s residence is considered only when deciding whether settlement should be granted after the probationary period has been completed. In these cases it is simply a matter of ensuring that the required probationary period has been completed, and if so, whether the relationship is subsisting. Social and cultural ties are taken into consideration when deciding on applications where an other dependent relative is looking to join a sponsor. If it can be shown that this relative cannot be supported within his/her home country by other family members or the community, this will strengthen the application to join a sponsor who can support them in the UK. Residence permits are not issued in the UK; however, these factors are taken into consideration at various stages of the application process either for leave to enter, or for settlement upon completion of the probationary period. Article Are there examples of successful legal challenges when an application for family reunification is rejected or a residence permit is either not renewed or removal ordered? Successful legal challenges have been made and this is specifically allowed for in the system: for some types of application, there is a right of appeal if a visa is refused. The most common are applications for settlement by children, dependent relatives, spouses and fiancé(e)s. The ECO will let applicants know if they have right of appeal and give them the appeal forms they need. In such cases, the ECO will provide applicants with three documents: the written Notice of Refusal (explaining why the ECO has refused the visa); the Notice of Appeal form AIT2 (form to be completed by the applicant, explaining why they think the ECO was wrong to refuse their visa); a leaflet explaining how to fill in the Notice of Appeal form. Appeals can be lodged directly with the Asylum and Immigration Tribunal (AIT) in the UK or the appeal form can be sent to the overseas visa section where the visa was refused. The visa section will then forward it to the AIT in the UK. Applicants cannot send the form to both the AIT and the overseas visa section. A copy of the Notice of Refusal must be sent with the Notice of Appeal form. These must be sent in together, no later than 28 days after the Notice of Refusal is received by the applicant. There is no charge for appealing against a visa being refused. An Immigration Judge will hear such appeals in the UK. When considering an appeal, the Immigration Judge will look at all the evidence sent in by the applicant s representative, as well as by the Home Office. As the executive body with overall responsibility for immigration, the Home Office would collect the information from UKvisas (from the relevant ECO) to be presented to the Judge. The judge will decide the appeal on the individual details of the case and in line with the Immigration Rules Please see Annex E for details of Article This information has been taken from UKvisas Guidance on Appeals. 36

37 d) Application to certain groups As mentioned previously, there are considerable differences between family reunification rights under Community law for EEA nationals (Directive 2004/38/EC) and UK immigration provisions, definitions of family members are different (note Article 2 of the Directive), and include the concept of extended family members (Article 3). The process is also taken from a rights-based approach, meaning the UK only confirms status in most circumstances (Article 2 cases), rather than granting it. There are also ongoing legal challenges in this area, concerning the basis on which a UK national can assert community family reunification rights. The groups that have different terms to fulfil, in relation to each other, when sponsoring a family member to enter the UK are: UK nationals, EEA nationals and Third Country Nationals. An EEA national will need to fulfil the terms of Article 2 of Directive 2004/38/EC only, which are less restrictive than those terms set out in the UK Immigration Rules, which apply to UK nationals. Therefore, an EEA national may have less difficulty in bringing a family member who is a Third Country National into the UK than a British citizen would. For Third Country Nationals sponsoring a family member, the rules that apply depend on the sponsor s immigration basis and the basis on which s/he is settled in the UK Development of family reunification policy between 2002 and 2006 Is the implementation of Directive 2003/86/EC already achieved? If so, what was the date? This question is not applicable to the UK as the decision was taken to opt out of Directive 2003/86/EC. Using the basis of the Directive articles as in Section 3.1, indicate how family reunification policy has developed in the reference period ( ). When doing so: - Give a general overview of the political and public debates on family reunification during the reference period. - Are there any (public) discussions in the Member State concerning the content of the directive? - Are there any plans to change family reunification policy in the near future? In 2005, the Home Office published a paper entitled Controlling our borders: Making Migration Work for Britain. Five year strategy for asylum and migration. This paper included changes that had and would be made to the routes of entering the UK as a family member of someone present and settled in the UK. The paper states that British citizens and those settled in the UK should be allowed to be joined by their spouses or fiancé(e)s. Those allowed to settle would also be able to bring immediate family (spouses and children under 18), but others only in exceptional circumstances. The UK would continue to allow people to be joined by parents and grandparents who are over 65 and have no other relatives to support them in their own countries. A rigid quota would cause considerable hardship and was not considered acceptable. The minimum age for leave as a spouse or partner has since been raised to 18, to help address the problem of forced marriages, and following further consideration may be raised again to 21 if necessary. Abuse of marriage as a route to entry and settlement has been dealt with firmly by introducing the Certificate of Approval requirement and only allowing foreign 37

38 nationals to apply at designated register offices. Individuals have to demonstrate that the marriage has subsisted for two years before permanent status can be granted. The paper published in 2005 ( Controlling our borders: Making Migration Work for Britain. Five year strategy for asylum and migration ) stated that these tight conditions will be applied rigorously. It also stated that further changes would be made to increase the economic benefit to the UK of permanent settlement, and bring its requirements closer to the rights and obligations of full citizenship. Much more is now required from those who wish to become citizens they must demonstrate knowledge of English language and of life in the UK. These requirements are related to the factors that are most closely linked to migrants succeeding in the UK and becoming economically active, and are intended to encourage greater social integration. The criteria for settlement will be brought closer to those for citizenship by: People are required to demonstrate a minimum standard of English language and knowledge of life in the UK before they are granted settlement rights. Ending Chain migration. This involves ending the practice where those who settled in the UK on a family reunification basis can themselves immediately sponsor further family members, consistent with the UK s ECHR obligations. In future they will not be able to do this until they themselves have been settled for five years or have citizenship here. 43 There are no immediate plans to change policy with reference to family reunification. There are, however, plans to redefine family members for the purpose of entering the UK temporarily under the sponsored family visitors route. It is not envisaged that this will have any impact on family reunification policy. 3.3 Conclusions regarding family reunification policy and its development The UK opted out of Directive 2003/86/EC on Family Reunification primarily because it is not in line with the UK s border control policies. Despite this decision, this report has show that overall the UK s family reunification policy is currently closely in line with many Articles of the Directive. An important aspect of the UK s family reunification policy is that, regardless of the relationship between sponsor and applicant (be it spouse, fiancé(e), unmarried or same sex partner, or child) the sponsor must be present and settled in the UK. Without this crucial element, an application via a family reunification route would not be successful. The only exception to this is where the sponsor, following an asylum claim, has been granted five years limited leave as a refugee or five years temporary protection (i.e. Humanitarian Protection or Discretionary Leave). In both these circumstances, where only limited leave has been granted to the sponsor, an application for family reunification will be considered. The criteria outlined for each category of applicant to fulfil aim to reduce the number of fraudulent applications that are made and are successful. They also aim to ensure that genuine applicants who fulfil the necessary criteria have their applications processed effectively and are enabled to exercise their rights to family life. In the UK, much more is now required of applicants for permanent settlement, in order to bring the requirements closer to the rights and obligations of full citizenship. These requirements include a minimum standard of English, Welsh or Scottish Gaelic language, and good knowledge of life in the UK, both of which are tested before settlement can be granted. These requirements are intended to improve the integration experiences of those who are granted settlement. With knowledge of the UK 43 This information has been taken from the Home Office paper Controlling our borders: Making Migrations Work for Britain, please seen page 21, section 3, points to view the full text. 38

39 and the English language they should find it easier to settle into a new community, find work and become economically active. In addition to the introduction of these requirements to improve integration, there has also been a change in the minimum age for leave as a spouse or partner (both for applicant and sponsor). The age was raised from 16 to 18 in order to help address the problem of forced marriages, and following further consideration may be increased further to 21. It is hoped that by raising the age limit, young people will have the opportunity to complete their education and also develop the confidence to stand up against the pressure of a forced marriage. 39

40 4. Size and Composition of Family Reunification in the UK The statistical data presented in this section have been provided for the years available. In several cases, data for 2002 and 2003 have not been provided. The merging of two data management systems during this period means that numbers before and after the merge of data sources are not comparable. As a consequence, statistics for 2002 and 2003 have been omitted from the tables concerned to minimise the risk of misleading the reader. With reference specifically to point 4.1 (6) in this statistics section, it has not been possible to provide figures specifically for immigrants (those who have been in the UK for 6 months or more), as this information is not available. When presenting the age of dependants who apply for entry clearance (Table 11, page 48), owing to time constraints, it was not possible to provide the age breakdowns requested in the study specification for this data. Instead breakdowns have been provided only for those aged 18 and over and those under 18 years. The dependants age groups for the grants of settlement, provided in Table 12, also differ from those requested in the project specification. Smaller, non-overlapping age bands have been provided in order to maximise the value of this information. 4.1 Size regarding Family Reunification 1. Applications for family reunification Entry Clearance Table 1 shows the total number of applications for entry clearance made by family members of sponsors present and settled in the UK. Entry clearance confers leave to enter and ILE from the date of issue and will be activated upon passing through UK immigration control. In 2006, the number of applications for entry clearance through family reunification routes was at its lowest, within the reported three year period. Between 2004 and 2006, the number of applications decreased by 12 per cent from 22,061 to 19,355. Table 1 Applications for family reunification entry clearance Total number of applications 22,061 20,450 19,355 Applications for Indefinite Leave to Remain (ILR, settlement) Table 2 shows the total number of applications for ILR for family reunification purposes. The proportional increase of almost 50 per cent in 2006 was much greater than the increase in This probably reflects a change in policy which came into effect on 1 st April This policy changed the period of leave given to some passengers entering the UK as a spouse from 12 months to two years, and for others it was replaced with immediate ILE. This meant that an extra 12 months was added to the probationary period to be completed before some spouses could then apply for settlement (ILR). Hence, the number of applications for ILR went up greatly in 2005 and especially 2006 when a large number of those who entered just after the policy change came into effect would have been eligible to apply and the ILR applications would therefore have been processed by BIA. 44 This information has been provided from local management information and is not part of National Statistics. As such, it should be treated as provisional and therefore subject to change. 40

41 Table 2 Applications for family reunification ILR Total number of applications 36,165 39,340 58, Decisions made with respect to the filed applications for family reunification Entry Clearance Issued entry clearance applications for family reunification In 2004, 88 per cent (18,290) of all applicants were issued entry clearance (Table 3). In 2005, this proportion decreased to 86 per cent (18,362). This proportion dropped again to 81 per cent (15,773) in Table 3 Decisions on dependants applying for family reunification entry clearance Issued 18,290 18,362 15,773 Refused 2,450 2,951 3,704 Total decisions 20,740 21,313 19,477 The figures for entry clearance include those applicants granted ILE, who (on arrival) would not need to complete a probationary period in order to apply for ILR. However, the number of persons granted ILE (settlement on arrival) is quite small and hence makes up a relatively small proportion of these statistics. Refused entry clearance applications for family reunification In 2006, 19 per cent (3,704) of entry clearance applications for family reunification were refused. This shows a rise in the number and proportion of refusals compared to 2005 and 2004 when 14 per cent (2,951) and 12 per cent (2,450), respectively, of applications were refused (Table 3). It can be seen that, despite the fact that the number of decisions dropped overall during this period, the number of applications refused increased. Although it has not been possible to attribute this change to a particular change in policy, it is believed that this is likely to be due to a combination of factors including the improvement in DNA testing and a fall in the number of grants of asylum (and therefore a fall in the number of asylum-related applications for family reunion). 45 This information has been provided from local management information and is not part of National Statistics. As such, it should be treated as provisional and therefore subject to change. 41

42 Settlement Grants In Table 4, it can be seen that, between 2002 and 2006, wives made up the largest single group of applicants for family formation and reunion grants (this also includes female unmarried partners). There was a large drop in the number of husbands and wives granted settlement between 2003 and 2004, reflecting the change to the Immigration Rules in April 2003; however the numbers rise again in 2006 as those who would have completed their two year probationary period would have become eligible to apply for ILR. Table 4 - Grants of settlement by category of grant, excluding EEA and Swiss (1) nationals, (2) United Kingdom Number of persons Broad category of grant (3) (4)(5) (4) (P)(4) Total employment-related grants (6) 19,800 29,635 42,260 63,015 31,830 Total asylum-related grants (7) (8) 29,940 22,105 52,555 67,810 30,605 Family formation and reunion (9) Husbands (10) 15,520 17,370 8,185 8,710 15,525 Wives (10) 25,120 30,790 12,920 15,585 27,200 Children 6,355 8,950 5,850 6,715 9,290 Parents and grandparents 1,750 3,090 1,985 1,450 1,470 Other and unspecified dependents 4,015 5,000 4,300 4,880 6,325 Total family grants 52,760 65,200 33,240 37,335 59,810 Other grants on a discretionary basis 10,980 16,160 6,715 6,400 7,720 Category unknown (11) 2,490 6,175 4,440 4,565 4,465 All grants of settlement 115, , , , ,430 (1) Swiss nationals are excluded from 1 June see Annex B. (2) Data from 2003 also exclude dependants of EEA and Swiss nationals in confirmed relationships granted permanent residence - see Annex B. (3) Excludes reconsideration cases. See Annex B. (4) May include a small number of cases in which a decision is recorded twice, where an individual has dual nationality. (5) Includes nationals of Cyprus, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia before 1 May 2004, but excludes them from this date. (6) In 2006 the qualifying period for settlement in all employment-related categories changed from 4 to 5 years. See Annex B. (7) Includes grants under the Family ILR exercise, see Explanatory Notes and Definitions, paragraph 20. (8) Excludes reconsideration cases and the outcome of appeals. (9) Spouses and dependants joining British citizens or persons previously granted settlement. (10) Includes civil and unmarried partners. (11) See Annex B. (P) Provisional data included in this column. 46 SOURCE: Control of Immigration: Statistics United Kingdom 2006 (Command Paper), Table

43 Refused applications for family reunification Indefinite Leave to Remain Table 5 shows the number of applications for family reunification ILR that were refused between 2004 and The number increased over this period by 10 per cent from 2,910 to 3,200. However, the number of refusals dropped slightly between 2004 and This overall increase in refusals reflects the increase in the numbers of applications made for ILR during this period. Table 5 - Number of refused applications for family reunification ILR, Year Number Of Cases 2,910 2,740 3, Rejected applications for family reunification after family reunification was explicitly applied for. 4. Issued residence permits for family reunification after family reunification was explicitly applied for. 5. Issued residence permits for family reunification after family reunification was not explicitly asked for (if relevant). The subsections above have been grouped together to avoid duplication and overlap in the information provided. Data provided up to this point include information on the decisions made regarding family reunification including the number of applications refused and the number of grants of settlement and entry clearance issued. Separate specific responses have not been provided for points 3 to 5 as the data available do not specify whether or not family reunification was explicitly applied for. 6. All immigrants granted entry and residence, thus including dependants Table 6 shows Passengers given leave to enter the UK by purpose of journey, excluding EEA and Swiss nationals. This Table shows all passengers granted entry from 2002 to It is important to note that not all those who were granted entry choose to apply to settle in the UK. For example, Table 6 includes categories of entry, such as visitors and students, who are not admitted into the UK to settle although they may decide to switch category and subsequently settle in the UK. It can be seen that during this period, the numbers of journeys made by passengers admitted as a spouse or fiancé(e) increased year by year. The number of journeys made by children granted leave to enter for a probationary year as dependents of persons settled, and the number of journeys made by passengers granted settlement on arrival, also increased between 2002 and 2006 from 4,380 and 2,470 to 5,780 and 8380, respectively. It was not possible to provide figures specifically for persons coming to the UK for 6 months or more, as this information is not available. 47 This information has been provided from local management information and is not a National Statistic. As such it should be treated as provisional and therefore subject to change. 43

44 Table 6, Passengers given leave to enter the UK by purpose of journey, excluding EEA and Swiss nationals, (6) United Kingdom Number of journeys Passengers admitted, by purpose of journey (1) (2)(P) Visitors 7,850,000 7,550,000 7,220,000 6,890,000 7,450,000 of which: Ordinary 6,150,000 5,860,000 5,650,000 5,330,000 5,750,000 Business 1,690,000 1,690,000 1,570,000 1,560,000 1,690,000 Students (inc dependants) 385, , , , ,000 of which: Students 369, , , , ,000 Dependants 16,200 13,800 13,100 13,200 17,000 Work permit holders (inc deps) (3) 120, , , , ,000 of which: Permit holders 85,600 81,400 82,700 91,500 96,600 Dependants 34,500 37,800 41,500 45,500 48,500 UK ancestry 10,400 9,150 7,700 8,260 8,490 Domestic Workers 10,100 10,600 10,400 10,100 12,500 Ministers of Religion Postgraduate doctors or dentists Working holidaymakers 41,700 46,500 62,400 56,600 43,700 Seasonal Agricultural Workers 16,900 20,700 15,000 13,000 14,200 Diplomats, consular officers or persons on 17,300 17,000 5,800 8,200 7,740 Foreign and Commonwealth government mission Au pairs 12,800 15,300 5,640 2,360 1,840 Admitted as a spouse or fiancé(e) (4) 30,300 31,400 35,300 41,600 47,100 Children granted leave to enter for a probationary 4,380 4,160 4,260 4,670 5,780 year as dependants of persons settled (4) Passengers in transit 1,300,000 1,140,000 1,260,000 1,310,000 1,530,000 People returning after a temporary absence 2,740,000 2,780,000 2,790,000 2,880,000 3,110,000 abroad Others given leave to enter (5) 61, , , , ,000 Granted settlement on arrival (6) 2,470 2,690 4,590 6,090 8,380 Total admitted 12,600,000 12,200,000 12,000,000 11,800,000 12,900,000 (1) Includes nationals of Czech Republic, Cyprus, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia before 1 May, but excludes them from this date. (2) Due to some gaps in the data from ports, estimates have been used. (3) Figures appear in Table 2.5 to a higher degree of precision. (4) Figures appear in Table 2.6 to a higher degree of precision. (5) Includes dependants, children and others. (6) Excludes asylum-related cases which are included in 'Others given leave to enter'. (P) Provisional figures. 48 SOURCE: Control of Immigration: Statistics United Kingdom 2006 (Command Paper), Table

45 Table 4 shows the total the number of people granted settlement 49 which means that they are allowed to stay in the UK permanently. This Table shows figures for other categories as well as the family formation and reunion category. The shaded section headed; Family Formation and Reunion is broken down by category but also shows the total number of family formation and reunion grants per year from 2002 to In 2002 and 2003, the total numbers for this category were higher than those for any other category of grants. However in 2004, the proportion of family formation and reunion grants decreased and, by 2005, this category represented 21 per cent of all grants of settlement. In 2006, the proportion of family formation and reunion grants increased once more to 44 per cent of all grants of settlement in that year. (see Figure 1) Figure 1 - Total Grants of Settlement, by broad category excluding EEA and Swiss nationals, 2002 to , , ,000 Number of Grants of Settlement 140, , ,000 80,000 60,000 55% 53% 76% 79% 56% Other grants of settlement Family related grants** 40,000 20,000 45% 47% 24% 21% 44% * Year * Includes nationals of Cyprus, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia before 1 May 2004, but excludes them from this date. ** Spouses and dependants joining British citizens or persons previously granted settlement. The Family ILR Exercise was announced by the Home Secretary on 24 th October This exercise allows certain asylum-seeking families who had been in the UK for four or more years to obtain settlement. To qualify, the main applicant of the family unit needed to have applied for asylum before 2 nd October 2000 and must have had at least one dependant aged over 18 (other than a spouse) in the UK on 2 nd October 2000 and/or 24 th October Those granted settlement through the Family ILR Exercise would have been counted within asylum-related grants. It can be seen in Table 4 that, since the launch of this exercise, the number of asylum-related grants has increased and more than doubled between 2003 and 2004, and showed a further marked increase in This, coupled with the 2003 change in immigration rules, helps explain the decrease in the proportion of family formation and reunion grants in 2004 and These are persons subject to immigration control who are allowed to remain in the UK indefinitely, excluding EEA nationals and Switzerland. 50 This information has been taken from Control of Immigration Statistics United Kingdom 2005 (Command Paper), page 104, point (xiv). Please see this publication for further details. 45