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A family with complex nationality status has been at the centre of a new ruling from the European Court of Justice. The father’s dual nationality of British and Irish is no problem – his children have British nationality too. His wife, however, is Colombian and possesses and EU Residence Card which was issued to her in Spain. Previously, she would have had to obtain a visitor’s visa to enter the UK and as this lasts for only six months, there would be an endless round of paperwork to be filled in to allow the family to stay together. The new ruling means that UK visas are no longer required in cases such as this; in fact, they are illegal.
Concerns for the UK
The new ruling will open the floodgates, the UK government is concerned, to large numbers of people who have previously been deterred by having to obtain the necessary documentation to obtain the visa. At a time when the government is tightening up on the whole complex issue of immigration, this is seen by some as a backward step. Issues of security are involved because some EU member countries are lax in their issuing of Residence Cards and insufficient checks are made on applicants. This means that some people will inevitably be able to enter the UK fraudulently with all the problems that that entails. The European Court made the ruling on the basis that freedom of movement is one of the basic human rights enshrined in its charters and this must take precedence over UK concerns.
Other issues
Welcomed by immigration charities and human rights lawyers, and denigrated by those who want to see ever more stringent border controls, the new ruling does nothing for poorer families who are still, in effect, separated by the tough financial legislation affecting their entry to the UK, which were brought in in 2012. At the moment, the UK is bound by the Court of Justice’s decision but it has launched an appeal. No date has been set for this.
3 September 2014
Anyone wishing to make an application for a UK settlement fiancee, partner or spousal visa from Jamaica and certain other Caribbean locations on or after 2 September 2014 will be required to send their documents to UK Visas and Immigration (UKVI) processing centre in Sheffield. This is an important change from the previous procedure for residents of Jamaica, as prior to that date the British High Commission in Kingston was involved in the decision-making process. Some things will not change, however. Passports will still not be sent to Sheffield with applications, but will remain throughout the process of deciding on an application at the British High Commission in Kingston. All other supporting documentation must be sent to the UKVI address directly by the applicant or their sponsor, making it more important than ever that all documents are present and all forms correctly filled in as delays in checking could be much longer. A settlement priority service will still be available and as with other applications, applicant’s passport will remain in Kingston but the process will be expedited, taking on average 3-5 working days. The accepted time windows of 15 working days for non-settlement applications and 60 working days for all applications from those wishing to settle permanently in the UK will still be followed, so no significant delays should be encountered.
The UK government has announced its intention to raise the cost of visa, nationality and immigration application fees as of 6 April 2014, and 31 March 2014 for some overseas premium services. Although the fee increases are still due to be fully ratified by Parliament, it is fully expected that the rises will go ahead, meaning the cost of many common visa types will go up by 4%. The changes will also see a number of new priority services introduced which will give applicants the option of expediting their applications at an additional cost.
The cost of visa applications for fiancee, unmarried partner and marriage visas, as well as short-term visitor visas, will all be subject to the 4% price rise. The cost of certain other visa types will also be raised, although UK Visas & Immigration (UKVI) say that wider ranging price increases were avoided, due to specific targeting. The UKVI also states that as well as introducing premium services, the rise in processing fees will also enable them to improve customer service.
The additional priority services being introduced include:
- a 3-5 day priority visa service for non-settlement applications for a fee of £100;
- a priority settlement application service which will be priced at £300 (this service currently costs £200);
- a super priority visa service intended to expedite the application process to its swiftest possible time period, for a fixed fee of £600;
- the passport ‘passback service’ will be available at more UKVI offices, subject to a fee of £40 per applicant; finally
- appointments will be available outside of regular office hours subject to a fee of £50 per applicant.
Also subject to the 4% price rise will be the cost of applying for a settlement fiancee, partner and marriage visa from outside the UK. This is set to rise to a cost £885 per applicant, up from the current rate of £851. The cost of a postal further leave to remain (FLR) application will rise to £601, whereas the cost of indefinite leave to remain (ILR) applications for temporary partner and spousal visa holders without dependents will go up to £1093. For any applicants who wish to apply in person making use of the same-day service, this will be subject to a £400 fee per person, additional to the relevant standard fee. Any dependents are required to pay a separate application fee; this fee will be non-refundable, regardless of whether the principal applicant’s application is successful or not.
05/01/2014
At the end of December 2013, UK Visas and Immigration – UKVI (formerly the UK Border Agency) added Russia to the list of countries where applicants must be tested for active tuberculosis (TB) before they can apply for a UK spouse, fiancee or unmarried partner visa. Effective 31 December 2013 anyone wishing to apply for a UK settlement visa under the family or partnership category must take a mandatory tuberculosis test before an application is made. Generally, any applicants for visas lasting longer than six months will need to be tested before submitting an application to the British Consulate in Moscow. Those applying for a six month fiancee visa will also need to take the test as by definition it is presumed that they are looking to stay in the UK for longer than six months upon marrying a British citizen or UK legal permanent resident. Russian residents applying for an EEA family permit to join their EU partner or spouse in the UK are exempt from the requirement as applications for EEA family permits are made in accordance with European law as opposed to UK fiancee, partner and marriage visa applications that are made under UK immigration Rules.
This change of UK immigration policy is due to the increasing number of cases of TB worldwide and the problems that are being encountered with strains of the bacteria now resistant to antibiotics.
What is the TB test and what happens if it is positive?
The test begins with a chest x-ray and for many people this is all that is required. If the x-ray shows any cause for concern, the next stage is a sputum (phlegm) test. Because the specimen provided is tested until the result is absolutely certain these tests can take several months before a decision is issued. If it is positive, the clinic doctor will notify the correct authorities in the UK (UK Visas and Immigration) as well as local authorities. People testing positive will be started on a course of treatment and close family members will also be included in this as TB often shows no symptoms.
Re-testing is available after a course of treatment has been completed; however, there must be at least a six month waiting period before reapplying – most treatment courses take at least this long in any event. When being re-tested, the applicant should take all paperwork relating to the first test with them to the UKVI-accredited clinic as well as an accepted form of personal identification, normally a national passport.
Medical advice does not advocate x-rays of pregnant women and so they can either choose extra lead protection and go ahead with the procedure, or can go straight to the next stage – the sputum test. Because the results of a sputum test can take up to two months and also the test costs more than the initial x-ray, most women opt to wait until after the birth. If the test at this stage shows no sign of TB, a certificate is given and the rest of the UK settlement visa application can go ahead. Positive results (or negative results following further testing) are not valid for refunds and there is no right of appeal; the doctor’s decision is final.
Children under eleven years old do not require testing but a doctor will need to be informed of the child’s medical history, followed by an examination and test if the doctor sees fit.
Are there fees for this test?
The process cannot begin until the fee has been paid and there are no refunds given, no matter what the test result or whether the applicant decides to withdraw from the process. There are four approved clinics in Russia which can conduct the TB testing and it is only from these that certificates will be accepted. UKVI-approved clinics are located in Moscow, St Petersburg, Yekaterinburg and Novosibirsk. Another important thing for applicants to remember is that certificates must be specifically for entry into the UK – certificates issued for entry into other countries are not acceptable and so it must be made clear to staff on making the appointment what the certificate is for.
How long is the certificate valid for?
Each certificate is valid for six months. Anyone with reason to suspect that they may have TB – or has a near relative with a recent diagnosis – is advised that the diagnosis and subsequent treatment may take up to nine months. There is no way of circumventing the process of treatment no matter how pressing other circumstances may be. Because of the serious implications of allowing anyone with TB to travel to another country, no exceptions are made for any applicants who make a UK marriage visa application without valid TB certification.
05/12/2013
There has been a change in the way UK settlement visa applications by non-EEA family members of HM Armed Forces personnel are processed from 1 December 2013. Those who applied for a UK marriage or partner visa before that date will still be considered under the old immigration Rules. The purpose of the changes was twofold; it was primarily designed so that non-EEA family members of HM Armed Forces personnel would not become an excessive burden on the UK tax system; and so that those applying for a UK spouse or de facto visa could blend easily into the British way of life.
The Home Office was aware that the Armed Forces situation is different from that of civilians. At the same time, it stressed the need to include them as part of an overhaul of the whole system. While the new UK immigration policy was being finalised, non-EEA family members of HM Armed Forces personnel were exempt until final decisions regarding the regulations were made. However, the rules relating to this have now been finalised, allowing discretion where that is appropriate (Ghurkhas discharged since 1 July 1997 would be an example).
One of the key requisites for UK marriage visa applications involves certain financial requirements, specifically income threshold. This is laid down as £18,600 for a partner with no dependents under the age of 18; £22,400 for a partner with one dependent child and £2,400 for each additional child. Because there were issues concerning the fairness of the current policy, UK Visas and Immigration – UKVI (formerly the UK Border Agency) has been putting thousands of UK marriage visa applications on hold since the High Court revealed its initial judgment concerning the income threshold on 5 July 2013. It has been decided to leave a moratorium in place until the Home Office appeal is heard in March 2014. Until then any UK marriage and partner visa applications that fall to be refused solely on financial grounds will be “paused” pending a final decision/ruling on this matter.
Any non-EEA partner of a serving HM Armed Forces member who is aged between 18 and 65 must now pass the Life in the UK test which is applicable to civilians also. The test evaluates a candidate’s understanding of British civics and whose who successfully pass the test can apply for indefinite leave to remain (ILR) – permanent residence or settlement in the UK. There will be a five year eligibility ‘probation’ period involved, but HM Armed Forces’ families have extenuating circumstances; for example if they are serving with their husbands/partners in an overseas post. In response to welfare requests by HM Forces, any family member suffering bereavement (even if the death is not directly as a result of service) will be able to apply for settlement immediately. The same immediacy pertains to a relationship that breaks down because of domestic violence or if the family member wants to become a British citizen; in the latter instance, there is no need to change immigration channels.
No plans have been formulated yet for foreign or Commonwealth members of the HM Armed Forces awaiting discharge; each case will be dealt with on its own merits, depending on the individual circumstances of the sponsoring British Citizen, e.g. the severity of a wound or medical condition. There are certain legal and technical rules under the UK Visas and Immigration (UK Border Agency) umbrella, covering specifics like foreign troops training in the UK or anyone coming to the UK from countries like Afghanistan where tuberculosis (TB) is endemic. In the latter instance, a medical test will be carried out on any non-EEA national applying for a UK settlement spouse or partner visa which will enable them to stay in the UK for more than six months.
An important date has been set regarding the future of the financial threshold requirements related to UK settlement visa applications for partners, fiancees and spouses of British citizens and UK permanent residents wishing to live permanently in the UK. In July 2013, the High Court decided that although the income requirements set by the Home Office were not illegal, they were however unreasonably high and in the words of the court, ‘unjustified and disproportionate’. The Home Office subsequently challenged this verdict. The appeal will be heard between the 3rd and 5th of March 2014.
The current financial requirement in place regarding UK partner, spousal and marriage visas under the settlement policy is an income of £18,600 per year for couples with no children. The main reason for the disapproval of the High Court was that this figure is approximately £5000 more than the average income of a UK resident. Furthermore, there are further income requirements for those wishing to bring children and other dependents into the country, which resulted in the UK marriage visa process being viewed as an insurmountable barrier to bringing a foreign family member or partner to the UK.
Due to this ongoing legal situation, the UK Border Agency (UK Visas & Immigration) has decided that those settlement visa applications which would otherwise be declined on account of the income threshold alone will be put on hold until the matter has been resolved. UK fiancee and marriage visa applications which attract a refusal on other non-income threshold related grounds will still be refused, while UK partner visa applications which meet all of the requirements will still be granted under the current UKBA policy.
There are some changes being made to the existing UK settlement and naturalisation requirements. These changes will be put in place on the 28th October 2013 and will affect most applicants who wish to settle in the UK or become a British Citizen by naturalisation. The new requirements are as follows:
- Most applicants must meet the requirements of the Life in the UK test; and
- Applicants must achieve a B1 level or equivalent in English language – speaking and listening.
KOLL requirements prior to 28 October 2013
In 2005, the UK government established the current KOLL regulations in order to ensure that all applicants had sufficient understanding of both the English language and the UK culture. Prior to 28 October 2013, ILR and naturalisation applicants were required to pass a Life in the UK test or English test for Speakers of Other Languages (ESOL) in order to meet the UKBA criteria for approval.
The new requirements for KOLL
Applicants making an application for settlement or naturalisation on or after the 28th October 2013 will need to meet the new KOLL requirement, which includes passing the Life in the UK test and English language test prior to submitting the application to UK Visas & Immigration (formerly the UK Border Agency). There are a few exemptions that are listed below.
New English language qualification requirements
Most applicants are now required to meet the B1 level requirements regarding speaking and listening in the English language. The following three qualifications are recommended:
- English language qualifications that cover speaking and listening at level B1 or higher.
- English for Speakers of Other Languages (ESOL). The qualification needs to be listed and recognised by Ofqual (Office of Qualifications and Examinations Regulations).
- Applicants who live in Scotland can use the National Qualification is ESOL at Scottish Qualifications Framework levels 4, 5 or 6.
There are no requirements regarding studying for the B1 English test. Applicants are advised to study in a comfortable and quiet environment, but there are no accredited colleges for these purposes.
Applicants with a Degree taught in English
Any individual who holds a Bachelor’s or Master’s degree that was taught using the English language will not be required to take a further test for the KOLL requirement. They will only be required to pass the Life in the UK test. The qualification must be recognised by UK NARIC as meeting the standard of a Bachelor’s or Master’s degree or PhD in the UK.
English speaking majority country nationals
Applicants from the following countries will not be required to take the B1 English test: Antigua and Barbuda, Australia, The Bahamas, Barbados, Belize, Canada, Dominica, Grenada, Guyana, Jamaica, New Zealand, and St Kitts and Nevis. St Lucia, St Vincent and the Grenadines, Trinidad and Tobago, the United States of America. However, applicants from these countries will still be required to pass the Life in the UK test before they can apply for settlement (indefinite leave to remain) or naturalisation.
Already passed the B1 English test?
Anyone who has already met the English language requirement when applying for their original entry clearance as a fiancee, unmarried partner or spouse of a British Citizen or UK legal permanent resident, will not need to take the test for settlement or naturalisation purposes, as long as their original test results are still valid at the time of application.
Already have settlement but applying for naturalisation?
New applicants are still required to meet the revised KOLL requirements if they apply on or after the 28th October 2013, but will not need to retake the Life in the UK test, if already passed. This means that applicants holding valid KOL test pass certificates will only need to pass the B1 English test.
Exemption details
Children under 18 and adults over 65 are not required to meet the KOLL requirements, and this also applies to those who suffer from physical and mental disabilities, and some other categories, including victims of domestic violence and refugees.
Transitional arrangements
The changing requirements may cause a few concerns for applicants already in the UK, so there is an agreement that allows the following categories to apply for extra leave to remain:
- Partners, parents or children of British Citizens and UK legal permanent residents
- Those who are currently in the UK on the basis of long residence
- Those who reside in the UK on the basis of private life
- Those who are currently living in the UK as the dependants of HM forces personnel
- Those who are in the UK as dependants on those who originally came to and entered the UK as work permit holders or PBS migrants.
Transitional arrangements for naturalisation
Currently, there is no time limit for those with settlement rights to apply for naturalisation. Therefore UK Visas & Immigration has not applied any transitional arrangements for this purpose. Becoming a British citizen is a privilege and those seeking this status should be well-prepared before applying.
In 1992 a precedent was set, since known as the Surinder Singh provision, making it technically possible for a British citizen to bring in a non-EEA partner or spouse to the UK on an EEA permit. Until the new financial thresholds for sponsorship under the settlement category came into effect last year setting minimum earnings for a sponsor, the Surinder Singh provision was considered by most people to be too cumbersome a method to use and potentially very costly, if it resulted, as it often does, in the sponsor having to give up their permanent employment in the UK in order to gain economic migrant status in the EEA. Anyone working in another EEA state, even if only for a short while for example a few months, can bring in a foreign partner, husband or wife under EU law rather than UK law as far as the visa/entry clearance is concerned. This means that their employment status in the UK and their income is irrelevant to the application.
The £18,600 minimum annual salary ruling came into force in July 2012 and has caused a lot of distress to many who were wishing to bring into the UK a partner or spouse on a UK settlement visa, and who do not have the requisite salary. The amount required goes up with every dependent child and so many who would not otherwise consider it are taking the Surinder Singh route to reunite their families.
Because EEA citizens have stronger migration rights than UK citizens, they can bring in family members to the UK under EU regulations. Anyone from a member of the EEA can bring in non-EEA family members to the UK and hundreds of thousands of immigrations follow this route every year. Until the minimum earnings threshold was brought in, this was economically not very viable for most UK citizens unless they already worked abroad as a matter of course, but with other obstacles now in the way, more people are using the Surinder Singh provision and if the Home Office appeal against the recent High Court judgement on the financial rules is upheld, this number is likely to continue to rise.
As the only English-speaking country in the EEA, Ireland gets a lot of economic migrants from the UK seeking to establish their standing. Although the language can be a problem, Spain and Portugal are also popular destinations, most likely because of their large number of bar and restaurant openings and their need for English speakers in the tourist trade. The Netherlands is also a popular choice, because of the country’s well deserved reputation for having a large number of very competent English speakers.
Although no overt moves have been made to do so, commentators believe nevertheless that the Surinder Singh route will be closed as soon as the UKBA lawyers can make a good case. It is true that it appears to contradict other UK legislation that non-British citizens using this provision can bring family members into the UK from outside the EU easier than UK citizens who are permanently resident. EU law does overrule UK law in many sectors, but feeling is very strong that this should not be the case in any area to do with borders and immigration.
The UK Border Agency (UKBA) guidelines do state that any application will be refused if it cannot be proved the British citizen was genuinely engaged in employment or self-employment in the country of application. Despite this assertion, there is no hard and fast rule that precludes a UK citizen from using the Surinder Singh provision rather than going through the costly process of applying for a visa for a partner or spouse which is bound to be refused on financial grounds. UK marriage visa rules are at the best of times a complicated area and the EEA economic migrant status ‘loophole’ just makes it much more complex. Currently, however, there are no strictures other than practical ones to prevent the Surinder Singh provision from being used.
Since July of 2012, the minimum income threshold for those wishing to bring a foreign partner to the UK on a settlement fiancee or marriage visa has been £18,600 a year. In rules laid out by the UK Border Agency, if the sponsoring UK citizen or legal permanent resident wishes to include a child in the settlement visa application, it rises by £3,800 for the first child, then another £2,400 is required for each additional child. Because the minimum income level required to apply for a UK marriage visa is way more than the average amount earned by almost half of the UK working population, three cases were taken to the High Court on the basis that the rules were discriminatory and interfered with Article 8 of the Human Rights Act, the right to a private and family life.
The High Court judgment did not result in the UK Border Agency rule being summarily overturned. The judges determined that the rules were ‘onerous and unjustified’ but they were not unlawful. It had been hoped by those affected and many other professional groups that the threshold rule would be stricken from the record and stopped forthwith, but the High Court found themselves unable to go that far, whilst nevertheless recommending that the UK Border Agency (UKBA) look at the current rule with a view to adjusting the amounts involved as fast as possible.
As an interim measure while the Home Office decides on whether it will appeal, all cases where the financial requirement is the only stumbling block which stands between an acceptance and a refusal of a UK marriage or partner visa application will be put on hold. This will affect only a relatively small number and will apply solely to applications made under Appendix FM to the Immigration Rules after 5 July 2013. Any other reason for refusal other than strictly financial will not be put on hold but must be considered final.
The High Court made some suggestions which the Home Office does not have to follow, but are sensible ones in the view of campaigning organisations. Setting £13,000 as the minimum income threshold has been greeted with enthusiasm as this is a much more likely salary coming into the household from the sponsor’s employment alone. Although they were hoping for the threshold to be overturned completely, the Joint Council for the Welfare of Immigrants (JCWI), said, through a spokesman, that the ruling proved the rules were ‘disproportionate’.
An All-Party Parliamentary Group on Migration, meeting some weeks before the High Court handed down its judgment, are in broad agreement that the threshold should be re-assessed, to minimise separation of families and the resultant hardship. The UK Border Agency (UKBA) has made a statement suggesting that they are looking again at the impact the rules have on the average family seeking to reunite in the UK. More people are taking matters into their own hands and using the Surinder Singh ‘loophole’ which hinges on the difference in rules within the EEA and the UK – enshrined in EU law, this relies on working status and is the answer for many, although those who are not able to leave their jobs to work abroad, even briefly, are still held in limbo.
Related news:
Australian and New Zealand residents who are applying for a UK fiancee, spouse or partner visa are now able to get their settlement application fast tracked by the regional British High Commission in Manila. It is important that applicants understand that this priority service is not a guarantee of approval. What it does is put the applicant to the front of the processing queue. It also does not make any difference to the high standards required for granting a UK marriage visa, so anyone who has a previous failed application or have a criminal record or any other problem that is likely to result in the application being turned down is urged not to go to the extra expense of AUS$390 per applicant. This fee will not be refunded under any circumstances and must be paid online in advance. Proof of payment must be sent with the application and it is not possible to pay the fee later once the UK marriage visa application has been made.
The premium settlement application refers to timescale only and all applicants are still required to include the correct paperwork when submitting an application to the UK Border Agency (UKBA). As long as there is no problem with the paperwork or the application in general, payment of the fee generally means that the application can be completed within ten working days of the arrival of the paperwork in the UKBA Manila office. Anyone applying must include the receipt for the payment and it helps to write ‘Priority’ on the envelope. The ten day estimate does not include time spent in the postal system, in either direction.
The premium settlement application may take longer than the estimated ten days if there has been an earlier refusal by the UKBA to grant a UK visa or if the applicant has been denied entry into the UK. In cases in which the applicant has overstayed a period of leave in the UK or has been refused entry or has been deported, they may encounter delays despite paying the priority service fee and the application could be denied. If there are any underlying problems, checks will need to be made and this could cause considerable delay. This will apply to all those who have been refused a visa for Australia, Canada, New Zealand, United States of America or the Schengen countries in the past or has been convicted of a criminal offence anywhere in the world. It is always vital to thoroughly check all paperwork before sending off any UK marriage, partner or fiancee visa application because if anything is missing, out of date or incorrect in any way, there will be extra delays, payment of the premium fee notwithstanding.
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