JANUARY 2013 IMMIGRATION DIRECTORATE …

1 JANUARY 2013 1 IMMIGRATION DIRECTORATE INSTRUCTIONS FAMILY MEMBERS UNDER THE IMMIGRATION RULES Section FM PARTNER & ECHR article 8 GUIDANCE This guidance is effective from 9 July 2012. SECTION CONTENTS 1. INTRODUCTION Purpose 2. GENERAL PROVISIONS Purpose General Grounds for Refusal 3. FAMILY LIFE WITH A PARTNER Entry clearance as a partner Suitability requirements Criminality Eligibility requirements: Relationship Present and settled Minimum age requirement Prohibited degree of relationship Requirement for couple to have met in person Genuine and subsisting relationship Assessing whether a marriage or civil partnership is valid Fianc (e) or proposed civil partner seeking entry to enable the marriage or civil partnership to take place Evidence that any previous relationship has broken down Assessing the intention to live together permanently in the UK Eligibility requirements.

2 Financial Accommodation Eligibility requirements: English language Decision on entry clearance as a partner Granting leave to enter as a spouse, civil partner, unmarried partner or same sex partner Granting leave to enter as a fianc (e) or proposed civil partner Refusal of leave to enter Refusal Paragraphs Suitability Eligibility JANUARY 2013 2 Leave to remain as a partner Requirements for limited leave to remain as a partner Suitability requirements Criminality Eligibility requirements: Relationship Eligibility requirements: IMMIGRATION Status Consideration of overstaying Eligibility requirements: Financial Accommodation Eligibility requirements: English Language Consideration of Section : Exception Assessing children's best interests article 8 and Zambrano Assessing whether there are insurmountable obstacles Exceptional circumstances Consideration of paragraph 276 ADE.

3 Private life Decision on leave to remain as a partner Initial grant of leave to remain as a partner (where is not applied) Granting an extension of leave as a fianc (e) or proposed civil partner Initial grant of leave to remain as a partner where applies Refusal of leave to remain Refusal paragraphs Suitability Eligibility Curtailment of stay Indefinite leave to remain (settlement) as a partner Requirements for indefinite leave to remain as a partner Suitability requirements Criminality Eligibility requirements: Relationship Eligibility requirements: Financial Eligibility requirements: Knowledge of English language and about life in the UK Overstaying Consideration of Section EX: Exception Child's best interest, article 8 and Zambrano Insurmountable obstacles and exceptional circumstances Consideration of paragraph 276 ADE.

4 Private life Decision on indefinite leave to remain as a partner Grant of Indefinite leave to remain as a partner Grant of leave to remain as a partner following an application for indefinite leave to remain (where is not applied) Grant of leave to remain as a partner following an application for indefinite leave to remain (where is applied) JANUARY 2013 3 Refusal of indefinite leave to remain Refusal paragraphs Suitability Eligibility Curtailment of stay Indefinite leave to remain as a bereaved partner Requirements for indefinite leave to remain as a bereaved partner Eligibility requirements Timeliness of applications Out of time applications Granting indefinite leave to remain as a bereaved partner Refusing indefinite leave to remain as a bereaved partner Refusal paragraphs Suitability Eligibility article 8 AND PARAGRAPH 353B article 8 CLAIMS RAISED AT APPEAL Appeals against refusal under the family and/or private life route Appeals against

5 Refusal under any other route Judicial reviews article 8 CLAIMS AND ASYLUM/HUMANITARIAN PROTECTION CLAIMS Refusal Paragraphs article 8 CLAIMS MADE WHEN REMOVAL PENDING RECOURSE TO PUBLIC FUNDS Annex A. Consideration Summary Partners Family Life as a Partner Entry Clearance Annex B. Consideration Summary Partners Family Life as a Partner Leave to Remain Annex C. Consideration Summary Partners Family Life as a Partner Indefinite Leave to Remain JANUARY 2013 4 INTRODUCTION On 9 July 2012, IMMIGRATION Rules (HC 194) came into force introducing new requirements for those applying for leave to enter (entry clearance), leave to remain, further leave to remain and indefinite leave to remain in the UK as a family member.

6 These rules provide a clear basis for considering IMMIGRATION family and private life cases in compliance with article 8 of the European Convention on Human Rights (the right to respect for private and family life). In particular, the new IMMIGRATION Rules reflect the qualified nature of article 8, setting requirements which correctly balance the individual right to respect for private or family life with the public interest in safeguarding the economic well-being of the UK by controlling IMMIGRATION and in protecting the public from foreign criminals. The rules also take into account the need to safeguard and promote the welfare of children in the UK.

7 Since the 9 July three further statements of changes have been laid in light of Alvi v SSHD (Supreme Court judgment), to make amendments which are technical in nature and serve to ensure the new family Rules deliver the original policy intention and to make amendments for the new criminality threshold. These statements of changes are Cm8428 which came into force on 20 July 2012, HC565 which came into force on 6 September 2012 and HC 760 which came into force on 13 December 2012. This guidance applies to: 1. applications for entry clearance, leave to remain, further leave to remain and indefinite leave to remain in the UK submitted on or after 9 July 2012 by an applicant who first applied for leave to enter or remain on or after that date, as a: partner a fianc (e), proposed civil partner, spouse, civil partner, same sex partner or unmarried partner of a person who is: o a British citizen; or o present and settled in the UK; or o in the UK with limited leave as a refugee or person granted humanitarian protection bereaved partner (other than fianc (e) or proposed civil partner) of a British citizen or person settled in the UK; and 2.

8 Considerations of the right to respect for Family and/or Private life where subject to paragraph of Appendix FM a valid application is not required in the following cases where a claim is raised: as part of an asylum claim, or as part of a further submission in person after an asylum claim has been refused; or where a migrant is in IMMIGRATION detention; or where removal directions have been set pending an imminent removal; or in an appeal; or in response to a (one stop) notice issued under section 120 of the Nationality, IMMIGRATION and Asylum Act 2002; and in any of the circumstances specified in paragraph (a) the requirements of paragraphs (c) and (c) are not met.

9 JANUARY 2013 5 Those who have applied before or been granted entry clearance, or limited leave or discretionary leave as a family member prior to the 9 July 2012 are subject to transitional arrangements. Generally they can continue their route to settlement under the Rules in force in part 8 on the 8 July 2012 with some exceptions as set out in Part 8. See IDI on Family Members Transitional Provisions: The Rules are not replicated in this guidance except where further clarification is deemed appropriate for casework. Links to the Rules are provided where they are referred to. For ease of access via systems, links are provided for caseworkers via Horizon, work tools and guides section of the UKBA intranet and UKBA internet for external access.

10 Where caseworkers are referred to this should be interpreted as including anyone making a decision on behalf of the Secretary of State including entry clearance officers and caseworkers across UKBA and Border Force. NOTE: The caseworker should undertake a full consideration of the application before granting or refusing leave. Suggested refusal paragraphs for inclusion in correspondence with the applicant are contained at the end of each relevant section of this guidance. NOTE: When considering an asylum case (where no formal application is required), the caseworker should look at the Rules in force at the date of consideration. Purpose Appendix FM and 276 ADE of the IMMIGRATION Rules sets out the requirements to be met to qualify the right to leave to enter or remain in the UK on the basis of Family and Private life including article 8 of the European Convention on Human Rights (ECHR) and the need to safeguard and promote the welfare of children in the UK.