Family Members

Keys areas of work undertaken include:

Spouse, Civil Partner, Fiancé, Fiancée, Cohabitee [Partner] of a British Citizen or Settled Person after 9 July 2012 – Applications under Appendix FM

Spouse, Civil Partner, Fiancé, Fiancée, Cohabitee are all classified as partner under Appendix FM. A person is only regarded as a cohabitee or a partner under Appendix FM if they have been living together with the applicant in a relationship akin to a marriage or civil partnership for at least two years prior to the date of application.

Applicants applying under this category must show that:

• They and their partner are both aged 18 or over at the date of application
• They and their partner are not related in a way that means they could not marry in UK law
• They and their partner have met in person
• Their relationship with their partner is genuine and subsisting
• If the applicant and their partner are married or in a civil partnership, the marriage or civil partnership is valid in UK law
• The applicant meets the suitability requirements
• Any previous relationship has permanently broken down
• The applicant and their partner intend to live together permanently in the UK
• The applicant meets the financial requirements.
• The applicant meets the English language requirement

The financial requirements under Appendix FM are onerous. The applicant must provide specified evidence, from sources listed in Appendix FM - SE of specified gross annual income. Only income and savings from specified financial sources are taken into account. Some financial sources are not permitted to be combined with others. There are specific ways of calculating the amount that can be taken into account in fulfilling the financial threshold. The specified documents that must be produced in support of the application are mandatory. Only limited flexibility is available. All these are made more complex by the fact that many of the substantial requirements are not listed in Appendix FM, but are listed in Appendix FM - SE and the Home Office Policy Guidance.

The Immigration Rules were changed on 1 December 2013, bringing Armed Forces family rules in line with Appendix FM. The new rules mean that members of HM Forces wishing to sponsor a non EEA dependent to come to or remain in the UK will have to meet the minimum income threshold, as well as the English language requirement. See also Armed Forces.

An applicant may be allowed to ‘switch’ into the category of partner under Appendix FM if they are currently in the UK in a different immigration category. However, they are not allowed to ‘switch’ into this category if they are in the UK as a visitor, with permission to stay that was given for a period of less than 6 months (unless that leave was as a fiancé, fiancée or proposed civil partner), on temporary admission or temporary release unless section EX 1 applies, or in breach of the Immigration Rules for a period of over 28 days unless section EX 1 applies. This is generally known as the immigration status requirement.

Our role in Appendix FM applications is risk management to ensure success. Detailed assessments are carried out in all cases.

Parent of a child in the UK

To qualify under this route, the child of the applicant must be under the age of 18 years at the date of application, living in the UK and a British Citizen or settled in the UK.

Further, the applicant must:

• Have sole parental responsibility for the child or
• Where separated or divorced, the parent or carer with whom the child normally lives must be a British Citizen or settled in the UK and not the partner of the applicant, and the applicant must not be eligible to apply for entry clearance as a partner under Appendix FM or
• If applying for permission to remain in the UK under this category, an applicant may also fulfil the eligibility requirement if they have sole parental responsibility for the child or the child normally lives with the applicant.

An applicant must provide evidence that they either have sole responsibility or access rights to the child, and that they are taking, and intend to continue to take an active role in the child’s upbringing. Further, an applicant must meet the suitability requirement, be able to maintain and accommodate themselves without relying on public funds and meet the English language requirement.

The concept of sole parental responsibility is not defined in the rules or in the guidance on this category. Under the general law, in order to show that the sponsoring parent in the UK has sole responsibility for the child he or she will need to show not only financial responsibility for the child but also normal parental responsibility in respect of all other aspects of the child’s life. It is acceptable that the child’s day to day care is delegated to another person in this own country but evidence that ultimate control rests with the applicant parent is required.

An applicant may be allowed to ‘switch’ into this category under Appendix FM if they are currently in the UK in a different immigration category. However, similar to the partner category, they must fulfil the immigration status requirement. This means they are not allowed to ‘switch’ into this category if they are in the UK as a visitor, with permission to stay that was given for a period of less than 6 months (unless that leave was as a fiancé, fiancée or proposed civil partner), on temporary admission or temporary release unless section EX 1 applies, or in breach of the Immigration Rules for a period of over 28 days unless section EX 1 applies. This is generally known as the immigration status requirement.

A parent applicant who is entitled to grant of leave under the Parent of a Child in the UK category may also be able to establish a derivative right of residence under the CJEU judgement of Ruiz Zambrano. We carry out a detail assessment in all cases. Clients are advised of the advantages and disadvantages of different options. See also Derivative Right of Residence.

Children of a Person with Limited Leave as a Parent or Partner

This route is for a child whose parent is applying for entry clearance or who has limited leave to remain as a partner or parent under Appendix FM.

The child, which can include an adopted child in certain circumstances, must be under 18 years at the date of application or when first granted leave as a child under this route. This means that a child who reaches 18 before they are entitled to a further extension of leave or settlement will still be treated as if they are under 18 when the application is considered. Children, whether on initial application or at any stage before they are settled, must not be married or in a civil partnership, must not have formed an independent family unit and must not be leading an independent life. Further, a child is only eligible to apply under this category if:

• The child’s parent’s partner under Appendix FM is also the parent of the child or
• The child’s parent has had and continues to have sole responsibility for the child’s upbringing or
• There are serious and compelling family and other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child’s care

The child must also meet the financial requirement under Appendix FM.

Children of Settled Parents

This category remains under Part 8 of the Immigration Rules and is unaffected by Appendix FM. There is no need for applicants to fulfil the financial requirement under Appendix FM.

A child seeking leave to enter to accompany or join a parent present and settled in the UK must be joining either:

• Both parents who are present or settled in the UK or are being admitted on the same occasion for settlement or
• One parent who is present and settled in the UK and the other who is admitted on the same occasion for settlement
• One parent who is present and settled in the UK or being admitted on the same occasion for settlement and the other parent is dead or
• One parent who is present and settled in the UK or being admitted on the same occasion for settlement and has had sole responsibility for the child’s upbringing
• One parent or a relative who is present and settled in the UK or being admitted on the same occasion for settlement and there are serious and compelling family and other circumstances which make exclusion of the child undesirable and suitable arrangements have been made for the child’s care.

In addition to the above, the child must be under 18 years, unmarried and not leading an independent life. It must also be shown that the child can and will be maintained and accommodated adequately without recourse to public funds.

Adult Dependant Parents, Grandparents and Relatives

The Appendix FM category replaces the previous provisions for ‘Other family members’ for applications made on or after 9 July 2012.

Applications under Appendix FM can only be made from outside the UK.

In order to be eligible, the applicant must be the parent aged 18 years or over, the grandparent, the brother or sister aged 18 years or over or the son and daughter aged 18 years or over of a sponsor who is in the UK. The sponsor must be aged 18 years or over, a British Citizen or present and settled in the UK or in the UK with refugee leave or humanitarian protection. In addition, the applicant, or the applicant and their partner, if they are the sponsor’s parents or grandparents, must as a result of age, illness or disability require long term personal care to perform everyday tasks. Further, they must be unable, even with the practical and financial help of the sponsor, to obtain the required level of care in the country where they are living because it is not available and there is no person in that country who can reasonably provide it or it is not affordable.

The new rules under Appendix FM have had a ‘significant impact on applications under the adult dependant relatives visa route.’ (All Party Parliamentary Group on Migration. Report of the Inquiry Into New Family Migration Rules June 2013). Management Information from the UK Border Agency for the period between 9 July 2012 and 31 October 2012 shows that only one settlement visa was issued to an adult dependant relative during this period. The All Party Parliamentary Group on Migration concluded in their inquiry in June that ‘on the basis of the evidence received, the adult dependant relative route appears to have all but closed. British people and permanent residence who may wish to care for a non EEA elderly parent or grandparent at their own expense in the UK now appear unable to do so.’ It went on to question whether this is ‘unnecessarily prohibitive and likely to have negative impacts into the future by prompting significant contributors to our society to move abroad or deterring them from working here at all.’

Victims of Domestic Violence

Victims of domestic violence may be granted indefinite leave to remain where the marriage or relationship breaks down as a result of domestic violence during the probationary period granted as a partner. They will also need to fulfil the suitability requirement.

The appellant must provide evidence that during the period of leave as a partner, the applicant’s relationship with their partner broke down permanently as a result of domestic violence.

Bereaved Spouses and Partners

Bereaved spouses and partners will be entitled to apply for indefinite leave to remain if the spouse or partner they joined in the UK died during the probationary period. The applicant will need to fulfil the suitability requirement. The applicant will also need to demonstrate that at the time of the partner’s death the relationship between them and the partner was genuine and subsisting and each of the parties intended to live permanently with the other in the UK.

Armed Forces

The Immigration Rules were changed on 1 December 2013, bringing Armed Forces family rules in line with Appendix FM. The new rules mean that members of HM Forces wishing to sponsor a non EEA dependent to come to or remain in the UK will have to meet the minimum income threshold under Appendix FM. A basic English language requirement at A1 level of the Common European Framework of Reference (CEFR) will apply to all non EEA partners seeking leave to enter or remain in the UK as a dependent of a member of HM Forces. To qualify for settlement all non EEA partners and children between the ages of 18 and 65 will be required to pass the Life in the UK test and hold an intermediate speaking and listening qualification at B1 level on the CEFR. All non EEA partners and HM Forces personnel granted leave under the Immigration Rules will serve a 5 year probationary period before eligible to apply for settlement. See also Spouse, Civil Partner, Fiancé, Fiancée, Cohabitee [Partner] of a British Citizen or Settled Person after 9 July 2012 – Applications under Appendix FM