UKBA Policies and Rules- Risky Business Marrying a Foreigner
The appeal in Quila & Anor v Secretary of State for the Home Department [2010] EWCA Civ 1482 was heard in the Supreme Court on 8 and 9 June 2011. Judgement is expected from the Supreme Court in the coming months. The Government’s stated position in the case of Quila in the lower Courts is that the increase in the minimum age for sponsors and applicants was intended to prevent forced marriages. Despite the Court of Appeal finding that the SSHD’s application of the relevant immigration rule in Quila was unjustifiable, the SSHD’s decision to defend their position in relation to Paragraph 277 of the Rules highlights the Government’s intention to put in place and entrench rigorous measures intended to reduce immigration. That reduction in immigration is the Government’s intention is without doubt. Immigration Minister Damien Green’s speech of 1 February 2011, Reforming The Immigration System, provides among other matters “ My task is to reduce the numbers coming, increase the numbers leaving when their visas are up and to eliminate abuse of the system. So I am taking action to tighten our migration system across all entry routes for non EEA-migrants – work, students and family – and to break the link between temporary routes and permanent settlement…. We need to improve controls in all routes of immigration. Take what is called the family route. In 2009 38,000 people were issued with a marriage visa to come to the UK and 56,000 obtained indefinite leave to remain by dint of marriage (excluding dependants). Last November we introduced a requirement for all those applying for a marriage visa to demonstrate a minimum standard of English…”.
The speech is set out in more detail at http:/www.homeoffice.gov.uk/media-centre/speeches/immigration-reform.
The SSHD’s introduction of new policies and rules inevitably has had an impact on those applying for leave to enter or remain in the UK on the basis of marriage to British nationals or those settled in the United Kingdom. It used to be the case that applicants relying upon Paragraphs 281, 284 and 287 of the Immigration Rules not only had to contend with seeking to show that their marriage was genuine and subsisting but that they could also be maintained and accommodated as per the rules without recourse to public funds. However with successful challenges such as those resulting in the abolition of the Certificate of Approval for Marriage Scheme and with the Supreme Court ruling that third party support is permissible( Ahmed Mahad 2009 UKSC 16), the SSHD has sought to introduce yet more measures all seeming to seek to limit drastically the number of applicants entering the United Kingdom via the family route.
On 27 November 2008 and 6 April 2010 Paragraph 277 of the Immigration Rules was amended to read:
“Nothing in these Rules shall be construed as permitting a person to be granted entry clearance, leave to enter, leave to remain or variation of leave as a spouse or civil partner of another if either the applicant or the sponsor will be aged under 21 (or aged under 18 if either party is a serving member of HM Forces) on the date of arrival in the United Kingdom or (as the case may be) on the date on which the leave to remain or variation of leave would be granted”.
Rule 277 affects applications under paragraphs 281, 284 and 287 of the Immigration Rules which set out the requirements to be met by those seeking leave to enter, leave to remain or indefinite leave to remain as the spouse/civil partner of a British citizen or person settled in the UK( Fiance‘s, proposed civil partners, unmarried and same sex partners are also subject to the minimum age requirements via paragraphs 289AA and 295AA of the immigration rules respectively. Basically permission to live in the United Kingdom is not to be given if the applicant or sponsor is under 21years of age on the date of arrival or when leave would be granted. Until November 2008, the applicant and sponsor had to be at least 18 years old. Serving members of the British armed forces and their partners are however still subject to a minimum age requirement of 18 years.
In addition to the requirements of Paragraph 277, new language requirements were introduced on 29 November 2010 and a new criminality threshold also introduced on 6 April 2011-applicants must now be clear of unspent convictions when they apply for settlement. Paragraphs 281, 284 and 287 have been amended to reflect these changes.
1. PARAGRAPH 277 OF THE IMMIGRATION RULES- CHALLENGE TO THE CURRENT MINIMUM AGE REQUIREMENT IN SPOUSE APPLICATIONS
Quila & Anor v Secretary of State for the Home Department [2010] EWCA Civ 1482
Diego Andres Aguilar Quila, a Chilean national was born on 12 July 1990. He entered the United Kingdom on a student visa which expired on 3 August 2009. Before the expiry of his visa, on 22 November 2008 he married Amber Jeffery, when she was 17. His wife was born 25 April 1991. At the time of marriage Diego Aguilar would have been eligible for a visa as a spouse when his wife reached 18, but before that date arrived the new rule was introduced. Mr Aguilar therefore applied before the announced rule-change took effect, but the application was refused on the ground that his wife was still only 17. By the time she turned 18 the amended rule was in force and the Home Office refused to waive it. A notice of refusal to vary Mr Aguilar's leave to enter was simultaneously issued. The effect of the refusal was that prior to the expiry of his student visa, Mr Aquilar having no right of appeal, left the United Kingdom on 31 July 2009. His wife left with him. To do so she had to give up a place which she had been offered on the joint honours degree course in modern languages beginning that autumn at Royal Holloway College of London University. There was no equivalent course available in Chile, and her plans to become a modern language teacher in the UK had to be put on hold. The couple have since moved to the Republic of Ireland; but they are still unable to live together in the UK.
Lord Justice Sedley viewed that the Home Secretary in 2008 had reached the debatable but tenable view that the new rule 277 would have some effect in reducing the incidence of forced marriages. He accepted that the objective of frustrating or discouraging forced marriages was a legitimate one. In Lord Justice Sedley’s judgment the correct course was to decide the cases under appeal in relation to their own facts, thus moving from the possibility of striking down the rule to the possibility of dis-applying it. Lord Justice Sedley observed that the facts relevant to the appeals included an unequivocal acceptance by the Home Secretary that the marriages in the cases were entirely voluntary and neither was it disputed that the operation of the rule was compelling one couple to live abroad and the other couple to live apart. One of the critical initial questions was what right the appellants could rely on in order to found a case on proportionality. Lord Justice Sedley considered that two such rights were founded upon the right of a citizen of the United Kingdom to live in the UK, and the right of an adult to marry. The Court observed that the first right is an indefeasible and unconditional right, for the British state has no power of exile. The second was a right which was governed and qualified by statute, but it was in the eyes of the common law a fundamental right with which the state may interfere only within measured limits – for example, in relation to age, consent and formality.
In Lord Justice Sedley’s judgment the question whether the spouse of a United Kingdom national who exercises the right to marry is entitled prima facie to the benefit of the other spouse's right of abode without interference under the immigration rules is not concluded by any Strasbourg authority but was, however, the subject of domestic authority. Lord Justice Sedley considered that rule 277 represented a direct interference with what the common law and Convention both value as a fundamental right. Lord Justice Sedley considered that in the eyes of the common law it was not simply the right to marry and not simply the right to respect for family life but their combined effect which constituted the material right: that is to say a right not merely to go through a ceremony of marriage but to make a reality of it by living together. Lord Justice Sedley also considered that for the state to make exile for one of the spouses the price of exercising the right to marry and embark on family life required powerful justification . Lord Sedley noted that it was not disputed that there will be measures which a state is entitled to take which impede the right, for instance by excluding spouses with serious criminal records or – materially – parties to forced marriages. In deciding whether to apply such measures it was established the state may place weight on the fact that neither spouse has a citizen's right of abode here. Lord Sedley accepted the appellants' case that the starting point was not, as the Home Secretary suggested, a thin entitlement which, so long as it can be exercised somewhere in the world, can legitimately be stultified here. It was a fundamental right which, whether at common law or by virtue of article 8 read with article 12 of the Convention, the state is ordinarily required to respect. Lord Justice Sedley ‘s judgement was that the rule subjects all young couples to an unspoken but irrebuttable presumption that their marriage is a forced one. The Home Secretary's stance that only a rigid rule will serve the necessary purpose was in Lord Justice Sedley’s judgment, undermined by the exception made by amendment in favour of members of the armed services. It was impossible to see, and no reason had been suggested, why the possibility of a forced marriage on which the rule was predicated was any less present among members of the armed services than among the population generally. The introduction of the exception, in Lord Justice Sedley’s view made all but untenable the Home Secretary's contention that an all-embracing rule, making no distinction of persons, is necessary if the objective is to be met. In his judgment the policy imperative was only obliquely, partially and in large part speculatively related to the measure under scrutiny. The critical question was why the protection of the vulnerable justified a blanket rule which invaded the fundamental rights of a far greater number of innocent people. In Lord Justice Sedley ‘s judgement this was apparently not addressed
Lord Justice Sedley limited the Court's judgment to allowing the two appeals on the ground that the application of rule 277 to the two appellants and their sponsors was unlawful. He considered that the rule would not be strike down since the Court had not been dealing with its impact on couples where neither spouse is a United Kingdom national. The Court considered that it was for the Home Secretary to keep the rule in limited form or to drop it altogether.
Lord Justice Pitchford agreed with Sedley LJ and for the reasons given by Sedley LJ, concluded that refusal of leave on the ground of age alone represented such a disproportionate interference with a fundamental right that the decisions could not stand.
In Lord Justice Gross’s judgment, he considered that even allowing for a wide margin of appreciation, the application of rule 277 to a couple such as Mr. and Mrs. Aguilar, was irrational or unreasonable in the traditional, common law, Wednesbury sense. He considered that there was simply no reason capable of justifying the application of this rule to the couple. He considered that the Home Secretary’s argument that only a blanket policy was workable, without any exception for a couple such as Mr and Mrs Aguilar, struck him as unpersuasive and that it was in any event belied, as illuminated in the examples given by Sedley LJ, by the need to consider individual circumstances: (1) in cases where the Home Secretary was content to waive the policy on Art. 8 grounds; (2) in in-country appeals to the First-Tier Tribunal; and (3) in out-of-country appeals from the decision of an entry clearance officer
The Court of Appeal therefore did not find that paragraph 277 was unlawful, but found that it its impact on the specific cases it considered was unlawful. As stated above the Supreme Court’s judgement is awaited.
2. ENGLISH LANGUAGE REQUIREMENT FOR SPOUSES FROM 29 NOVEMBER 2010
As per Paragraphs 281 and 284 of the Immigration Rules, those applying for leave to enter or remain in the UK as spouses/partners of British citizens or persons settled in the UK must meet the new language requirements unless an exception applies.
Current UKBA guidance provides that the changes to the Immigration Rules take effect on 29 November 2010. However, if an applicant has made an application before 29 November 2010 for entry clearance or leave to enter or remain as the spouse or civil partner of a British citizen or a person settled in the United Kingdom, and the application has not been decided before that date, it will be decided in accordance with the Rules in force on 28 November 2010.
An applicant can meet the language requirement in one of the following ways:
A.. By passing an acceptable test at a minimum level A1 of the Common European Framework of Reference for Languages (CEFR) with an approved provider.
UKBA Guidance provides that The Common European Framework of Reference (CEFR) is a tool, put together by the Council of Europe, to provide a basis for the mutual recognition of language qualifications. Its six levels are becoming widely accepted as the European standard for grading a person’s language proficiency. Level A1 of CEFR is the level of a basic speaker, who can understand and use familiar everyday expressions and very basic phrases. They can introduce themselves and others, and can ask and answer questions e.g. where they live, people they know, and things they have. They can interact in a simple way provided the other person talks slowly and clearly, and is prepared to help. The minimum standard applicants will need to meet is in speaking and listening at level A1 of the Common European Framework of Reference.
The six levels of CEFR are:
A Basic Speaker
A1
A2
B Independent Speaker
B1
B2
C Proficient Speaker
C1
C2
A person who has level A2, B1, B2, C1 or C2 which tests speaking and listening (or speaking and listening plus reading and/or writing) exceeds level A1. Only certain providers have been assessed as meeting UK Border Agency requirements to issue English Language test certificates.
B.. By being a national of a majority English speaking country.
The applicant is deemed to meet the language requirement if they are a national of one of the following countries: Antigua and Barbuda; Australia; the Bahamas; Barbados; Belize; Canada; Dominica; Grenada; Guyana; Jamaica; New Zealand; St Kitts and Nevis; St Lucia; St Vincent and the Grenadines; Trinidad and Tobago; United States of America. The evidence required to show that a person is a citizen or national of a majority English speaking country is a passport or travel document.
C.. By having an academic qualification equivalent to a Bachelor’s degree in the UK which was taught in English.
In relation to the qualifications accepted as evidence, the applicant will meet the language requirement if they;
(i) have obtained an academic qualification (not a professional or vocational qualification), which is deemed by UK NARIC (the National Recognition Information Centre for the UK) to meet the recognised standard of a Bachelor’s degree in the UK, from an educational establishment in one of the following countries: Antigua and Barbuda; Australia; the Bahamas; Barbados; Belize; Dominica; Grenada; Guyana; Ireland; Jamaica; New Zealand; St Kitts and Nevis; St Lucia; St Vincent and the Grenadines; Trinidad and Tobago; the UK; the USA; and provides the specified documents; or
(ii) have obtained an academic qualification (not a professional or vocational qualification) which is deemed by UK NARIC to meet the recognised standard of a Bachelor's degree in the UK, and
(a) provides the specified evidence to show he has the qualification, and
(b) UK NARIC has confirmed that the academic qualification was taught or researched in English, or
(iii). have obtained an academic qualification (not a professional or vocational qualification) which is deemed by UK NARIC to meet the recognised standard of a Bachelor's degree in the UK, and provides the specified evidence to show:
(a) s/he has the qualification, and
(b) that the qualification was taught or researched in English.
Where the applicant does not meet the requirement in one of the ways listed above, they may qualify for an exemption from the requirement to provide a test certificate if:
( i )they are aged 65 or over, or
( ii ) they have a disability (physical or mental condition) which prevents them from meeting the requirement, or
( iii )there are exceptional compassionate circumstances which prevent them from meeting the requirement.
As per paragraph 287 of the Immigration Rules, spouses applying for indefinite leave to remain after completing the probationary period will need to fulfil the knowledge of life and language in the United Kingdom requirement.
If the applicant is not able to demonstrate that they meet the requirement, and they do not qualify for an exemption from the requirement, their application will be refused under the Rules.
UKBA’s policy on the new language requirements can be found in Chapter 8, Annex 3 of the Immigration Directorate Instructions.
3. CRIMINALITY REQUIREMENT FOR APPLICANTS SEEKING SETTLEMENT (INDEFINITE LEAVE TO REMAIN) IN THE UK
From 6th April 2011, all applications for settlement, including applications for indefinite leave to enter as the husband/wife of a person who is present and settled in the United Kingdom, will be subject to a change to the criminality requirement. The only exemption will be those who are seeking settlement via the ‘protection route’.
Where an applicant is applying for settlement on or after 6 April 2011, UKBA Guidance provides that an applicant will need to demonstrate that they do not have any unspent convictions (as provided for by the Rehabilitation of Offenders Act 1974) when their application is considered. Those who submitted their application before 6 April 2011 will be considered under the pre-existing arrangements (i.e. via the ‘character, conduct and associations’ provision in the general grounds for refusal).
Where applicants have unspent convictions, UKBA provides that their application must be refused. Convictions outside of the UK will be treated as if that conviction occurred in the UK.
The Rehabilitation of Offenders Act 1974 enables criminal convictions to become ‘spent’ or ignored after a ‘rehabilitation period’. Provided that they have not been reconvicted for a further offence, most convictions can become spent after a certain period of time (sometimes called the rehabilitation period). The Rehabilitation periods are laid down in law which must be referred to.
A conviction becomes 'spent' after a specified rehabilitation period. This time depends on the sentence imposed and the age of the offender at the time of conviction. The rehabilitation period runs from the date of conviction, not the date of completion of the sentence. Receiving a Fixed Penalty Notice (FPN) is not a criminal conviction and should therefore be disregarded( however there are exceptions). Receiving a caution is not a criminal conviction and they are to be disregarded.
The Immigration Directorate Instructions, Chapter 6A on Settlement clarifies UKBA’s current policy in relation to the Criminality Requirements.
4. EFFECT OF THE REQUIREMENTS
The minimum age requirement as can be seen most clearly in the case of Quila affects not only the applicant but also the sponsor. The effect in Quila was that the UK national was forced into “exile” in order to preserve her marriage.
The Court of Appeal in Quila did not find that paragraph 277 was unlawful, but found that its impact on the specific cases it considered was unlawful. The Court was therefore reluctant to strike down Paragraph 277 of the Immigration Rules. The Court of Appeal seemed to focus their judgement only on affected applicants who had British national spouses. If this is so perhaps the effect of the Court of Appeal judgement would in any case have had some limited effect if the Secretary of State had left Paragraph 277 as it currently is and not sought to go on and defend their position.
If the Supreme Court decides in the Secretary of State’s favour in Quila, this would mean that the effects and impact of Paragraph 277 noted by the Court of Appeal will continue to apply to affected couples ie-arbitrary and disruptive impact of the rule on the lives of a large number of innocent young people thus keeping a very substantial majority of bona fide young couples either apart or in exile.
The impact of the requirements affecting spouses can be severe where there is prolonged separation or even break up of the relationship thus affecting children to the marriage. There is thus risk in marrying a foreigner as the existence of a marriage in itself in no way guarantees success of applications and the introduction of the new requirements set out above ensures that even more hurdles have to be crossed before an applicant can even enter the United Kingdom.
UKBA must satisfy themselves that the marriage is subsisting and that each of the parties has the intention to live together permanently with the other as his or her spouse. A relationship may break down whilst an applicant delays in submitting their application so as to meet either the language requirement or criminality requirement. Where UKBA have been notified that a marriage has broken down during the probationary period, a person's stay in the United Kingdom may be curtailed.
In addition to fulfilling the existing requirements in paragraphs 281 and 284 of the Immigration Rules there will be an additional requirement to paragraph 322 of the Immigration Rules which sets out the general grounds for refusal. Therefore in cases where an applicant has for example multiple cautions, their application can be considered in line with the general requirements of character, conduct and associations within paragraph 322(5) of the Rules.
For those with unspent convictions, the impact of the new rules can be most clearly seen where an applicant has received a prison sentence of 6months or less or where they have received a fine. In relation to prison sentences of 6months or less, the rehabilitation period for those aged 17 or under when convicted is 3 and half years and the rehabilitation period for those people aged 18 or over when convicted is 7years. For fines, probation or community service orders, the rehabilitation period is 2 and half years for those aged 17 or under when convicted and the rehabilitation period for those aged 18 or over when convicted is 5years. Therefore those wishing to apply for further leave to remain or settlement are seriously affected where they have a relevant unspent conviction.
Further, in criminal cases UKBA can check to determine whether or not they wish to pursue deportation action against the offender.
If the applicant is not able to demonstrate that they meet the requirements of the immigration rules, and they do not qualify for an exemption from the requirement, their application will be refused. Thus an applicant unable to meet the new language requirements whilst in the UK or meet the requirements of knowledge of life and language in the UK will need to apply for an extension of further leave to remain to avoid becoming an overstayer necessitating the provision of further home office fees in order for that application to be processed.
Applicants unable to meet the criminality requirement or pass the new language requirements whilst they are outside the UK without an applicable exemption will not be able to enter the UK on the basis of marriage. Correspondingly those unable to meet the knowledge of life and language in the UK requirement will be unable to acquire indefinite leave to remain in the UK even where they meet all other requirements of the relevant immigration rules.
It appears from the Immigration Rules that spouses and civil partners not only have to meet the new language requirements when they apply for leave to enter or remain in the UK but in addition where applying for settlement after completing their two-year period of temporary residence will still need to fulfil the knowledge of life and language in the UK requirement.
Where it appears however for example that an affected applicant will never be able to meet the language requirements test in cases where an exemption does not apply, in order to avoid making several extension applications over the course of the years and in order to reduce a good deal of distress, it maybe worth considering submitting an application for Discretionary leave to remain in a strong case relying on Article 8 of the ECHR especially where children are involved - instead of continuously seeking to rely on the Immigration Rules where it appears an application is bound to fail for lack of fulfilment of all the requirements. However where successful, the outcome may well be that an application for settlement wil be delayed as the applicant will have lost the "benefit" of previously having to fulfull only 2years residence in the UK in relation to the probationary period prior to submitting a settlement application.
CONCLUSION
It is currently understood that there is an on-going challenge to the new language requirements in the High Court. It is not inconceivable that similar challenges may be mounted in the future in relation to the new criminality requirements. It seems following previous successful challenges in the Supreme Court such as the case of R(Baiai) v Home Secretary [2008] UKHL 53 with the subsequent resulting abolition of the Certificate of Approval Scheme on 9 May 2011, one cannot help but wonder whether the Secretary of State following the hearing of the appeal in Quila a week ago will be able to defend her position as regards Paragraph 277 of the Immigration Rules. Many, not least the appellants themselves, await the Supreme Court‘s judgement in Quila with bated breadth.
About the Author
Alice Muzira, Immigration Advanced Level 3 Solicitor
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