Test Case on UK Financial Maintenance rules

The High Court (Mr Justice Blake) today gave judgement in the eagerly awaited
test case of MM and Others – on the Financial Maintenance rules introduced in
July 2012 for spouses and partners of British citizens.

The court refused to quash the rules on the basis that they are discriminatory
or an infringement of Human Rights. The basic principle of a minimum earnings
requirement was upheld. However, the rules were found in some situations to be
disproportionate and the court has recommended that the government should look
at some of the finer detail – perhaps on recommended savings etc..

The ball is now in the government’s court to see if they decide to amend
anything. So, overall it seems the rules are here to stay but there may be
some situations where the government might need to amend the criteria to make
it fairer.

Both sides are expected to appeal today’s decision on various points so we do
not expect any quick resolution of the legality or not, of the rules. As it
stands the rules remain in force.

We wil update on our website if anything is amended by the government.

If you need assistance on any aspect of UK migration, then please feel free to
contact us through our website;

http://www.commonwealthimmigration.com/immigration-advice-uk.htm

UK – SPOUSES AND PARTNERS “FINANCIAL REQUIREMENTS”

UK – SPOUSES AND PARTNERS “FINANCIAL REQUIREMENTS”

It is now nearly 12 months since comprehensive changes were introduced by the UK government to the criteria for spouses and partners of UK citizens and of those settled in the UK.

These changes introduced on 9 July 2012 affect husbands, wives, unmarried partners, civil partners and fiancés.

As well as extending the probationary period for settlement from 2 to 5 years, the new rules introduced stringent new financial maintenance requirements.

12 months on, and many applicants are struggling to meet the requirements and many families have been separated as a result. A recent report by the UK All-Party Parliamentary Group on Migration condemned the “anguish” caused by the new rules.

However, the new rules seem set to remain in one shape or another. An immediate reduction in family visas of 16% is the first indication that these rules will help the government to meets its target of reducing net migration.

So, how does one meet the financial requirement? Currently, this can be met through income or savings (or a combination of the two).

In short – an annual income of GBP 18,600 is needed by the UK sponsor or total savings of GBP 62,500 (held either by the UK sponsor or applicant). These amounts are increased if children are to be included.

But the new rules are incredibly complicated and the documentary evidence to support an application needs to be almost perfect – case officers are rejecting applications without asking for clarification.

Income can be met through employment, self-employment, pension, investment, property rental.

Savings can be met through “cash funds” held in a bank account or similar.

The following are some of the main issues that arise;

• What sources of income and savings can be combined together? For instance employment and pension income can be combined but self-employment and savings cannot be combined.

• The rules have introduced a new formula for using savings to top up an income shortfall.

• The rules differ greatly depending on whether the applicant and / or sponsor are in the UK or outside the UK

• Applicants outside the UK can only rely on the employed income of the UK sponsor but pension income can be from either party.

• Applicants employed outside the UK must have an offer of employment in the UK. Self-employed applicants must show an intention to continue self-employment.

• Only savings held in cash funds can be counted – property equity, shares and stocks are all irrelevant. Savings must be held for 6 months.

• The specified evidence for self-employment and employment is very difficult to meet and many applicants (especially outside the UK) struggle to satisfy the requirements.

We are seeing many applicants coming to us who have been refused and are trying to submit an appeal. The reality is that an appeal is difficult unless you can show that the case officer made a basic error (which does happen of course).

It really is vital to prepare an application thoroughly and well in advance. We advise applicants to contact us early in their plans to move to the UK.

These new rules are complex and applications need to fit in exactly with one of the permitted categories for financial maintenance. The new approach is very different from the previous more flexible system that was in place before July 2012.

If you need assistance on any aspect of UK migration, then please feel free to contact us through our website;

http://www.commonwealthimmigration.com/immigration-advice-uk.htm

AUSTRALIA – SKILLED MIGRATION UPDATE

AUSTRALIA – SKILLED MIGRATION UPDATE

With the new migration program year (2013-2014) starting on 1^st July 2013 the Australian Department of Immigration has confirmed that there will be no major change in the planned migration intake.

The Immigration Minister has stated that Australia's migration program would be maintained at 190,000 places "to help fill skills shortages and reunite Australian families".

This is likely to see a continued focus on state sponsored migrants in the skilled migration categories

Since the launch of the SkillSelect application system 12 months ago, state sponsored migration has now become a very important component of the migration program.

Indeed from July 2012 to May 2013, nearly 8,000 nominations for permanent residence (visa subclass 190) were made by state / territory governments. The most popular states for nomination were New South Wales, South Australia, Australian Capital Territory and Western Australia.

For the same period, over 18,000 applicants were invited to apply for Independent migration (visa subclass 189) by SkillSelect.

The Pass Marks for both Independent and State Sponsored migration has remained constant at 60 points. State Sponsored migrants can receive 5 or 10 points to reach the required 60 points.

The most popular occupations currently being processed include Accountants, ICT Professionals, Engineers, Nurses and Teachers.

The most popular countries of origin for skilled migrants are;

India, UK, China, Pakistan, the Philippines, Iran, Sri Lanka, Malaysia, Ireland, Bangladesh, South Africa, USA.

The SkillSelect system has been able to impose “occupation ceilings” – i.e. to limit the number of invitations that can be issued from an occupation group.

In the migration year, 2012-2013 the following occupation groups reached their “occupation ceiling”;

• Chemical and Materials Engineers
• ICT Business & System Analysts
• Electronic Engineers
• Telecommunications Engineering Professionals
• Other Engineering Professionals
• Software and Application Programmers.

The new migration program on July 1^st allows all these occupations to become eligible again.

Also, on July 1^st all state / territory governments will release their updated occupation lists for state sponsorship. These lists are crucial for many applicants who do not qualify for Independent migration. State sponsorship is now a major route of entry and this trend is likely to continue.

Another development to take effect on July 1^st is a change in the Federal Skilled Occupation list with some occupations now being removed. These are; Hospital Pharmacist, Retail Pharmacist, Aircraft Maintenance Engineer (Avionics), Aircraft Maintenance Engineer (Mechanical), and Aircraft Maintenance Engineer (Structures).

Would you like to migrate to Australia in 2013-2104? What visa subclass is best for you? How does the new migration program affect you?

If you are interested in applying for migration to Australia, then please contact us so that we can check your eligibility.

Australia info page;

www.commonwealthimmigration.com/australia.htm

Immigration to the UK through the Surinder Singh Judgement

Introduction

Recent UK immigration changes have now made it extremely difficult for the spouses, partners, children and other family members of British citizens to move to the UK.

However, one often overlooked route to legally move to the UK is through what is widely referred to as the “Judgement in the Surinder Singh case”.

This route is entirely legal and backed up by EEA regulations and judgements. It cannot be changed at will by the UK government. Little wonder, that the UK Border Agency do not provide much information on this route to the UK as it allows family members in effect to bypass UK immigration. 

 

The Legal Background

Surinder Singh was a British citizen who moved to Germany to work, under his rights as an EU citizen. His wife, an Indian citizen, wished to then move back to the UK with him under EU law – i.e. on the basis that Surinder Singh was already exercising his EU Treaty Rights in Germany. In a landmark court ruling in 1992, the European Court of Justice (ECJ) agreed with him and thereby opened up a whole new world of immigration possibilities.

The basic principle from the case is that if a British citizen is living in another EU member state then he / she is entitled to return to the UK under EU Free Movement Rights and his / her family members are also entitled to enter under the same Free Movement Rights.

In effect, by living in another EU member state the British citizen becomes “European” and has the same rights as say, a German citizen moving to the UK with a non EU family member.

In a further case, the ECJ reaffirmed the Surinder Singh judgement and also clearly stated that it made no difference if the British citizen moved to another EU member state solely to facilitate a Surinder Singh type return. As long as one follows the correct process, one’s motive is irrelevant and cannot be questioned by the UK government.

The most recent set of EEA Regulations (published by the UK government) give legal standing to the Surinder Singh judgement.

The regulations state expressly that if the qualifying conditions are met;

 

“these Regulations apply to a person who is the family member of a United Kingdom national as if the United Kingdom national were an EEA national.”

 

In order words, the British citizen is treated as an EEA national.

 

 

The Advantages

This route of entry allows the family member to bypass all the requirements imposed on family members of British citizens living in the UK.

To keep re-iterating the point – the family member is now treated as the family member of an EEA national.

So, the restrictions of UK immigration law simply do not apply. This means;

·         No requirement to meet the new financial maintenance criteria introduced in July 2012

 

·         No requirement to meet the English language requirement.

 

·         There is very little room for the UK Border Agency to question the legitimacy of relationships.

 

·         A wider definition of family members under EEA law than UK immigration (includes partners, children up to the age of 21 and other dependents such as parents)

 

·         No hefty immigration fees to be paid to the UK Border Agency

 

·         Faster processing times as required under EU law.

 

·         A much more secure legal framework to move to the UK rather than being subject to whimsical changes imposed by UK politicians.

 

·         EEA nationals and their family members are not subject to the “no recourse to public funds” rule under UK immigration.

 

·         No requirement to have a UK employment offer.  

 

 

The Key Requirements

Step 1

The British citizen must move to another EU member state. This includes the 28 member states of the EU itself (not including the UK of course!) and the additional EEA members (Norway, Lichtenstein and Iceland) and also Switzerland.

The full list is;

Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Irish Republic, Italy, Latvia, Lichtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, Switzerland.

 

In order to qualify under Surinder Singh, the British citizen must then “exercise Treaty Rights” in that member state. This means being a worker  or self-employed. It does not include studying or retirement or being self-sufficient.

There is no requirement to earn a certain amount or even to work full-time. The requirement is to be a genuine worker so part-time, temporary work would suffice.

The ECJ in the Surinder Singh case stated a minimum period of 6 months is required to be exercising Treaty Rights in another EU member state. The regulations themselves do not specify a minimum period but 6 months is still seen as the general “rule of thumb”.

Most applications we have processed have been where the British citizen has exercised Treaty Rights for 6 months. There have been cases where 3 or 4 months have worked but we still recommend 6 months.

The British citizen should retain sufficient records of working and of their residence in the EU member state.

The spouse or partner of the British citizen should then move to that same EU member state and live with the British citizen.

However, the spouse or partner does not have to obtain a full residence visa to live in that EU member state (although often it is good to do so). However, it is perfectly possible to enter as a visitor, live with their British citizen spouse / partner and then apply for entry to the UK.

 

Step 2

The family member now needs to apply for a UK visa – or termed an “EEA Family Permit”. This is the most important part of the whole process – i.e. to ensure the applicant is categorised as the family member of an EEA national as defined in the Surinder Singh case.

It is vital to produce all the right evidence and to specifically address the Surinder Singh case in your application.

Normally, family members of British citizen cannot apply under EEA law. So, make sure the application is very specific in highlighting the Surinder Singh case and this is the category that one is applying under.

The application is usually made to the British Embassy in the EU member state that one lives in. Processing times vary but 3 weeks is the normal maximum time it takes. Some applications can be approved in a few days, if prepared properly.

If approved, the EEA Family Permit will be issued for 6 months and state that the applicant “MRS NAME” is the EEA Family Member of “MR NAME”.

Congratulations – you have now successfully used the Surinder Singh case and you are categorised as the family member of an EEA national. This now defines your immigration status on entering the UK and how you stay in the UK.      

   

Step 3

After moving to the UK, an application is then made for an EEA residence card for the family member. Much of the key material submitted in the EEA Family Permit application is still required, together with more evidence after moving to the UK.

An EEA residence card is then issued for 5 years.

 

___________________________________________________________

 

© Tim McMahon 2013

Email           tim@commonwealthimmigration.com

 

See my Profile on LinkedIn;
http://uk.linkedin.com/in/immigrationadvice