New family migration rules extend use of 10-year settlement route

14 August 2017

Longer path to achieving ILR gives rise to risks for local authorities​ 

Following a Supreme Court judgment considering the lawfulness of imposing a minimum income requirement for people applying to come to or remain in the UK as the partner of a British Citizen or person with settled status, the Home Office has amended the family migration (FM) rules. A consequence of these changes is that the use of the 10-year settlement route will be widened, which could have an impact on local authority NRPF service provision​ and hinder the integration of people with a long-term future in the UK. 

In the case of MM (Lebanon) v the Secretary for the Home Department [2017] UKSC 10 the Supreme Court found that, although the principle of a minimum income requirement was lawful, the Immigration Rules were not compatible with the European Convention on Human Rights as they failed to take proper account of whether a refusal might lead to a breach of Article 8 (the right to respect for a family and private life). The rules also failed to direct decision makers to consider the best interests of children.  

In order to apply these findings, on 10 August 2017, the government implemented changes to the FM rules, which are set out in Statement of Changes HC 290 and in Home Office guidance. Previously, where a person could not show that they met the minimum income requirement by producing evidence from a restrictive list, their application was likely to fail. Under the amended rules, a person may provide evidence from an alternative list to meet the minimum income rule, but only when exceptional circumstances apply, ​i.e., where a refusal of leave could result in a breach of Article 8 and unjustifiably harsh consequences for the applicant, their partner or a relevant child. Leave may also be granted where a person cannot meet the full requirements of the Immigration Rules but a refusal of leave would result in a breach of Article 8 and unjustifiably harsh consequences for the applicant, their partner, or a relevant child. Around 5000 applications that have been on hold pending the outcome of the court case will now be processed by the Home Office under the new rules.
 

10-year settlement route

Partners who have met the minimum income rulby satisfying the standard evidential requirements will continue to be granted 30 months leave to remain on a five-year settlement route, so indefinite leave to remain (ILR) can be applied for after five years. 

Where a person’s application succeeds on the basis of providing alternative evidence, or because they failed to meet the rules, they will be granted 30 months leave to remain (or 33 months leave to enter) on a 10-year settlement route. Although it will be possible to later switch into the five-year route, any time spent under the 10-year route will not count towards settlement on the five-year pathway.

The changes bring a new category of people onto a 10-year settlement route who will have either applied from abroad to enter the UK or extended their current leave to remain whilst in the UK.​ Until now, under the FM rules the 10-year settlement route has been used for people who are already in the UK and do not meet the requirements of the standard rules as a partner or parent, but can demonstrate that they have established family life in the UK, for example, with a British child where it would be unreasonable to expect the child to leave the UK. The other groups on a 10-year route are those granted leave to remain on the basis of their private life, or outside of the Immigration Rules. Typically, people granted leave under these categories do not have to meet any financial requirements and were usually overstayers the time of making their first application.

Being on a 10-year rather than five-year settlement route is a problem because immigration application fees and additional costs for legal representation impose a significant financial pressure on low income families. A person on a 10-year settlement route must spend £1493 four times to extend their leave before paying £2297 for an ILR application (with fees usually rising annually). Being required to make more applications also increases the risk of a person inadvertently overstaying, for example, forgetting to submit passport photographs could lead to an application for further leave being rejected. Once a person overstays, they lose their right to work, access to the private-rented sector and free NHS hospital treatment.
 

No recourse to public funds (NRPF)

Limited leave granted under a five-year settlement route will always have the NRPF condition imposed. 

Limited leave granted on a 10-year route will have the NRPF condition applied unless the Home Office has satisfactory evidence that the applicant is destitute (unable to obtain housing and/or meet their family's basic living needs) or there are particularly compelling reasons relating to the welfare of a child of a parent in receipt of a very low income. 

Generally, people granted leave on a 10-year settlement route will not have had to satisfy any financial requirements, and may need access to public funds, for example, if they are unable to support their family through employment because they cannot afford childcare. Where a person has satisfied the minimum income rule as part of their​ application for leave to remain under the partner rules then it would be surprising for recourse to be granted. Additionally, the NRPF policy (last revised since August 2015) states:

'In considering the applicant’s financial circumstances, the decision maker should have in mind that:
...
  • ​where the applicant is granted limited leave to remain as a partner, their partner is expected to support them and, if their partner is a British Citizen or settled in the UK, that person will have recourse to any public funds to which their circumstances qualify them. It should therefore be extremely rare for the applicant to be destitute.​'
It is open to anyone on a 10-year settlement route to apply to the Home Office for a change of conditions in order for their leave to be varied to gain recourse to public funds. This can be applied for following a change of personal circumstances which results in the person becoming destitute or otherwise meeting the conditions for being granted recourse.​​ Legal advice should always be sought before applying for a change of conditions as it may have long-term implications for people who have leave under the partner rules. ​Additionally, people need to be aware that if the NRPF condition is lifted, it can be re​-imposed when new leave is granted, leading to benefit claims stopping immediately.

What does this mean for local authorities?

In order to safeguard a child's welfare, under section 17 of the Children Act 1989, social services may provide housing and financial support to families with NRPF who are unable to afford housing and living costs on the basis of employment (when this is permitted) and any other sources of support available to them. This can place a significant financial burden on social services' budgets.

Normally, such support will not be required by people, who have had to demonstrate their ability to be maintained in the UK without reliance on benefits in order to be granted leave, and who are living with a partner who is British or otherwise has recourse to public funds. However, a change in family circumstances before a person has obtained settled status, or inadvertently becoming​ an overstayer due to a basic error when applying for further leave, could result in a family falling into destitution and requiring social services’ support when children are affected. 

By putting people who have met the minimum income requirement (albeit by providing evidence from the alternative list) onto a 10-year rather than five-year settlement route, the new FM rules increase the risk that some families will fall into destitution and require social services' support. Additionally, where under the Immigration Rules people clearly have a long-term future in the UK, protracted pathways to settlement are not conducive to local authority efforts to achieve community cohesion and an individual's integration into UK society.

Further information