EMN “FAMILY REUNIFICATION” REPORT SMALL SCALE STUDY IV · Entry clearance includes both limited...

EMN “FAMILY REUNIFICATION” REPORT SMALL SCALE STUDY IV

BY LEILA WRIGHT AND CHRISTINE LARSEN

IMMIGRATION RESEARCH AND STATISTICS

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EMN – Small Scale Study IV Family Reunification

Definitions The UK’s definitions of the following terms are largely as specified in Directive 2003/86/EC, Article 2, and the ad hoc query amongst EMN National Contact Points relating to the definition of “dependents”. Nuclear family – according to Directive 2003/86/EC, family reunification should apply to the nuclear family, that is, the spouse and minor children. The UK’s definition of the nuclear family matches this description. Third country national – means any person who is not a citizen of a country in the European Union within the meaning of Article 17(1) of the Treaty; as stated in the Directive. Refugee – means any third country national or stateless person enjoying refugee status within the meaning of the Geneva Convention relating to the status of refugees of 28 July 1951, as amended by the Protocol signed in New York on 31 January 1967; as stated in the Directive. Sponsor – largely as in the Directive, “sponsor” means a third country national residing lawfully in a Member State and applying or whose family is applying for family reunification to be joined with him/her; however, according to the UK’s definition a sponsor must be ‘present and settled’ in the UK. Family Reunification – according to the Directive this means the entry into, and residence in, a Member State by family members of a third country national residing lawfully in that Member State in order to preserve the family unit, whether the family relationship arose before or after the resident's entry. The UK’s definition of family reunification matches this description. Residence permit – entry clearance visas, if issued for six months or more to third country nationals given leave to enter the UK, act as authorisations to reside in the UK. Third country nationals subject to immigration control already in the UK, who successfully change or extend their immigration status, are issued a UK residence permit (as part of a vignette in their passport). EEA nationals in the UK are entitled to request registration certificates; however, they are not required to do so. Third country nationals who are dependants of an EEA national are entitled to a residence card; however they are not required to have one. These are all categories in which residence permits or authorisations acting as residence permits are issued in the UK. Unaccompanied minor – means third country nationals or stateless persons below the age of eighteen, who arrive on the territory of the Member States unaccompanied by an adult responsible by law or custom, and for as long as they are not effectively taken into the care of such a person, minors who are left unaccompanied after they have entered the territory of the Member States. Dependant – as in the ad hoc query between EMN members (January 2007). It was decided that the definition of a dependant should be regarded as follows: a dependant is any person who is granted entry and residence by a Member State (MS) to stay with their family member (i.e. the person referred to as ‘sponsor’ in Directive 2003/86/EC) and who has explicitly filed an application for reasons of family reunification. Entry clearance – an inclusive term for visas (for visa nationals), entry certificates (for non-visa nationals) and EEA family permits for the non-EEA family members of EEA nationals. An entry clearance takes the form of a sticker ("vignette") placed in a person's passport. Entry clearance includes both limited leave to remain and Indefinite Leave to Enter. Indefinite Leave to Remain (ILR) – permission given by the Border and Immigration Agency to remain in the UK, without time limit (settlement), to persons who under the Immigration Act 1971 Act require leave to enter or remain. Persons granted ILR are subject to immigration control and a two-year absence from the country can result in cancellation. ILR may be revoked under section 76 of the Nationality, Immigration and Asylum Act 2002. Indefinite Leave to Enter (ILE) – This is the immigration status granted by the Border and Immigration Agency to those foreign nationals who qualify for settlement in the UK on arrival without needing to complete an initial probationary period. A person granted this status has no immigration restrictions placed on the work they may carry out in the UK, and no time limited on their stay. Someone granted ILE is still subject to immigration control and a two-year absence from the country (sometimes less) can result in cancellation. There are few categories in which ILE is granted but these include dependent relatives and spouses who have completed four years living together abroad with their spouse who has right of abode or ILR in the UK. The term ‘present and settled’ is defined for applicants as follows. ‘Settled’ means being allowed to live in the UK lawfully, with no time limit. 'Present and settled' means that the person concerned [in the case of family reunification, the sponsor] is settled in the UK and, at the time that the dependents application is being considered under the Immigration Rules, is in the UK or is coming here with the dependent, or to join the dependent and plans to live with them in the UK if their application is successful. 1 1 This is taken from the guidance notes for applicants wishing to settle in the UK, please see UKvisas website for full text.

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1. Executive Summary Aim This UK country report describes the UK’s ‘family reunification’ policies and presents data on applications and on the characteristics of those who apply to enter and settle in the UK under one of the family reunification routes. The report was produced by the UK National Contact Point for the European Migration Network (EMN) as a contribution to the EMN Small Scale Study IV on ‘Family Reunification’. In the context of the 17th EMN meeting, the majority of participating National Contact Points (NCPs) agreed that the topic for the fourth small scale study should be ‘Family Reunification and Family Formation’, this title was later changed to ‘Family Reunification’. The report will, along with those of other participating Member States, feed into an EMN synthesis report. The synthesis report will compare family reunification policies and flows in the participating Member States and assess the extent to which Directive 2003/86/EC has been transposed into national legislation. Methodology This report is based on desk research, using internet sources and other literature. It pulls together existing evidence only in order to fulfil the project specification. No primary research was undertaken. However, information was provided by statistics, policy and operational colleagues within the Border and Immigration Agency (BIA) and UKvisas. Although the study includes information regarding the ‘sponsor’, the focus is on his or her family member, referred to as the dependant (or applicant) in this report. A literature search was conducted in order to uncover further information with regards to family reunification in the UK, and particularly the effects of chain migration, but little arose from this search that related specifically to the UK. Using the UK’s monthly EMN newsletter to the network of national contacts, a request was made for information regarding family reunification. No further information was uncovered in response to the request. Statistical data Statistical data were sought to provide information on the number of applications for UK family reunification, the decisions made with respect to the filed applications and the composition of dependants and the sponsors who they apply to join. The data were provided by colleagues within BIA within Immigration Research and Statistics (IRS) and the Data Management team, and by UKvisas Data Management team. Data provided by the BIA and UKvisas Data Management teams is from local management information and is not part of National Statistics. As such, it should be treated as provisional and therefore subject to change. Family reunification policy The following categories of dependants may apply to join family members present and settled in the UK through the family reunification route.

• Spouse or civil partner

• Fiancé(e) or proposed civil partner

• Unmarried or same sex partner

• Child or adopted child

• Parent, grandparent and other dependent relative

A key theme running through the UK’s family reunification policy is that, regardless of the relationship between sponsor and applicant, the sponsor must be ‘present and settled’ in the UK. Without this crucial element, an application via a ‘family reunification’ route would not be

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successful. The only exception to this is where the sponsor, following an asylum claim, has been granted five years limited leave as a refugee or five years temporary protection (i.e. Humanitarian Protection). In both these circumstances, where only limited leave has been granted to the sponsor, an application for family reunification will be considered. Another key element in the Immigration Rules dealing with such applicants is that of dependency. In order to qualify under the Rules, the applicant must be dependent upon the sponsor. A child (under 18) is always viewed as the dependant of its parent or parents and so a child cannot qualify as a sponsor under the Immigration Rules. Therefore no child could sponsor the entry of its parents. For each category of applicant, there is additionally a set of criteria that must be met in order for the application to be successful. The criteria for each category of entry within a ‘family reunification’ route are described within the report. A number of criteria apply to all applicants to ensure that relationships are as described, and in the case of marriage, are valid and recognised in the UK. The application of these criteria also ensures that entry via these routes is properly monitored, not seen as routes of easy access for living in the UK, and ensures that genuine applicants are able to join family members and exercise their rights to family life. Key aspects for all categories applying for family reunification are as follows.

• The sponsor must be “present and settled” in the UK;

• the sponsor (and in some cases the applicant) has adequate financial support for both parties and any other dependants without accessing public funds;

• the sponsor (and in some cases the applicant) has adequate accommodation, where they can both live with any other dependants, without accessing public funds; and

• the applicant (and in some cases the sponsor) are within specified age range for entry within their category.

There are also several other criteria outlined within the report which are specific to some categories but not all. For example, in cases where an application is made to join a spouse who is present and settled in the UK, the validity of the marriage will be assessed to ensure that it would be recognised in the UK. The UK’s integration requirements for dependants applying to join a sponsor who is present and settled in the UK are outlined in Part 8 of the Immigration Rules. New rules for permanent settlement were introduced in April 2007 and applicants are now required to have sufficient knowledge of English, Welsh or Scottish Gaelic language and sufficient knowledge of life in the UK, unless s/he is under the age of 18 or aged 65 or over at the time that the application is made. The new requirements aim to aid integration of migrants into their new communities in the UK, and bring the rights and obligations of those seeking settlement more closely in line with those for citizenship. There are differences between family reunification rights under Community law for EEA nationals (Directive 2004/38/EC) and UK immigration provisions: definitions of family members are different and the concept of “extended” family members is present in the Directive only. Another difference is that nationals of a Member State who go with their non-EEA family members to another Member State to exercise a Treaty right in an economic capacity, will on return to their home state, be entitled to bring their non-EEA family members to join them under EC law. There are no immediate plans to change policy with reference to family reunification. There are, however, plans to redefine ‘family members’ for those looking to enter the UK temporarily under the

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‘sponsored family visitors’ route. It is not envisaged that this will have any impact on family reunification policy. The UK opt-out The UK opted out of Directive 2003/86/EC on Family Reunification, primarily because it is not in line with the UK’s border control policies. The UK does generally follow the guidance of the Directive, but has chosen to opt out in order to avoid any possible clashes with current border control policies and any possible future changes. Although the UK opted out of the Directive, this report aims to clarify aspects of the UK’s family reunification policies that relate to the Directive’s articles to improve comparability with these policies in other member states. Family reunification immigration process Leave to enter the UK through the family reunification route involves a sponsor who is present and settled in the UK, an applicant (in one of the categories listed earlier in this summary), and the UK authorities. Dependants submit their application within their country of origin, or the country where they are living legally before coming to the UK. The granting of applications is ultimately dependent on the Secretary of State being satisfied that each of the applicable requirements of the specific case has been met. In practice, the main government actors within the application process are UKvisas and BIA. UKvisas Entry Clearance Officers (ECOs) are responsible for mandatory2 prior entry clearance, which takes place when applications are made to a British Embassy, Consulate or High Commission in the applicant’s country of origin (or country where s/he lives legally). BIA Immigration Officers at the UK border will then confirm that applicants have the correct clearance papers before entering the UK. They will also ensure that they are satisfied that the information provided in the application was genuine, and that circumstances have not changed before granting the applicant entry into the UK. Applicants are either granted Indefinite Leave to Enter (ILE, settlement on arrival) or leave to enter for a set probationary period (for example, a two year probationary period must be completed by an applicant granted limited leave to join a spouse or civil partner, unmarried or same sex partner). The UK makes use of various checking procedures to assess the family tie for family reunification applications. If an ECO decides that, based on the documentary evidence available, substantial doubts exist about the family tie between the applicant and sponsor, DNA testing may be used to ensure that the family relationship is as claimed within the application. DNA tests are not compulsory, and if an applicant declines a test, that alone will not be grounds for refusing the application; however, the ECO will record the reasons for declining the offer of a DNA test, which will form part of the basis of the decision. These tests are provided free of charge to first time applicants (for entry clearance applications only). Tests are only undertaken with the agreement of the applicant(s) and sponsor, and with the authority of an ECO. For those applicants granted limited leave to enter, once this probationary period has been completed they may apply for Indefinite Leave to Remain (ILR, settlement). BIA Caseworkers within the UK will decide whether applicants for ILR at this stage meet the requirements to be granted settlement. The BIA Caseworker or UKvisas ECO will look at the funds available to the sponsor and use discretion to decide whether these would be sufficient to support the applicant(s) without recourse to public funds, a requirement of family members seeking settlement.

2 Non-visa nationals seeking to enter the UK in a visa category for more than six months require a visa, whereas those seeking to enter the UK for six months or less do not.

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Public funds do not include benefits based on National Insurance contributions, such as: • contribution-based jobseeker's allowance

• Incapacity Benefit

• retirement pension

• widows’ benefit and bereavement benefit

• guardian’s allowance

• statutory maternity pay

Health care and education also do not count as public funds and family members are entitled to these services and may make use of them before they are granted settlement. Dependants joining a sponsor who has been granted refugee status will also be eligible for free health care and education. After applicants are granted ILR or ILE they have settlement rights independent of their sponsor. Entry Clearance Applicants granted entry clearance comprise those who are granted limited leave (i.e. an initial probationary period of leave to be completed before they can apply for ILR) and those who are granted ILE (settlement on arrival). Between 2004 and 2006, the annual number of applications for entry clearance for family reunification decreased by 12% from 22,061 to 19,355. Looking at the make-up of the applicants for entry clearance during this period, the statistics showed that female dependants accounted for the majority of applications (average 62%). Dependants seeking entry clearance to join a spouse/civil partner or under asylum-related family reunion made up the majority of applications over this period. With regard to the age of dependents, during 2004 and 2005, the majority of applications for entry clearance were made by dependants under the age of 18, whereas in 2006 the majority of applications were made by dependants aged 18 or over. In 2006 the top countries for family reunification applications for entry clearance were former Commonwealth countries, reflecting the large diasporas in the UK. Indefinite Leave to Remain In 2006, 58,890 applications for ILR for family reunification purposes were made – an increase of 63% on the 36,165 applications made in 2004. This large increase was probably largely due to a change in policy which came into place in April 2003. In brief, this policy change resulted in an increase in the period of leave given to some passengers entering the UK as a spouse from 12 months to two years, and for others it was replaced with immediate ILE. This meant that an extra 12 months was added to the probationary period to be completed before some spouses could then apply for ILR, resulting in a large increase in the number of applications two to three years after the policy change occurred. Looking at the make-up of applicants for ILR, the statistics show that, between 2004 and 2006, within family reunification categories, as with entry clearance, female dependants made up the majority of those applying for ILR (average 61%). The majority of dependants applying for ILR from 2004 to 2006 were spouses. Consistently, between 2002 and 2006, the highest numbers of grants of settlement in the family formation and reunion category were issued to wives of sponsors. Looking at the ages of applicants, the statistics show that, between 2004 and 2006, 26 to 30-year olds were the largest age group of dependants to be granted settlement. With regard to nationality, as with entry clearance, in 2006 the top countries for family reunification applications for ILR were former Commonwealth countries.

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2. Introduction: Family Reunification in the United Kingdom 2.1 Background information Aims and scope This UK country report describes the UK’s ‘family reunification’ policies and presents data on applications and on the characteristics of those who apply to enter and settle in the UK under one of the family reunification routes. The report was produced by the UK National Contact Point for the European Migration Network (EMN) as a contribution to the EMN Small Scale Study IV on ‘Family Reunification’. In the context of the 17th EMN meeting, the majority of participating National Contact Points (NCPs) agreed that the topic for the fourth small scale study should be ‘Family Reunification and Family Formation,’ this title was later changed to ‘Family Reunification’. The report will, along with those of other participating Member States, feed into an EMN synthesis report. The synthesis report will compare family reunification policies and flows in the participating Member States and assess the extent to which Directive 2003/86/EC has been transposed into national legislation. The chapter and section headings are those provided by the EMN. The UK opted out of Directive 2003/86/EC on Family Reunification, primarily because it is not in line with the country’s border control policies. The specifications for this study asked for information on decisions that Member States have made with regard to particular articles of the Directive. Although the UK opted out of the Directive, this report aims to clarify aspects of the UK’s family reunification policies that relate to these articles to improve comparability with these policies in other Member States. The UK’s family reunification policy is largely laid out in the ‘Immigration Rules, Part 8 – Family Members’. The majority of the information provided in this report on the UK’s family reunification policy has been taken from these Rules. The Rules include information for BIA staff and for those who apply as the spouse or civil partner, fiancé(e) or proposed partner, unmarried or same sex partner, child or adopted child, parent or grandparent, or other dependent relative of someone who is ‘present and settled’ in the UK. Those who enter as a dependant at the same time as a sponsor who is not ‘present and settled’ in the UK are not included in the UK’s ‘family formation and reunion’ statistical data. This is because the Immigration Rules state that sponsors must be ‘present and settled’ in the UK, in order for an application under one of the family reunification routes to be successful. The only exception to this is where the sponsor, following an asylum claim, has been granted five years limited leave as a refugee or five years temporary protection (i.e. Humanitarian Protection or Discretionary Leave). In both these circumstances, where only limited leave has been granted to the sponsor, an application for family reunification will be considered. A sponsor who is ‘present and settled’ in the UK may leave the country to accompany a dependant who has been given entry clearance into the UK; because the sponsor has left temporarily, the application is still valid for consideration under the relevant family reunification route. This study covers current and planned future UK policy, relevant available statistics and the ways in which the UK’s policy fits in with Directive 2003/86/EC. Owing to time constraints, it was not possible to cover section 3.1 a) of the study specification (‘practice followed for optional (“may”) clauses in the Directive) in this report specifically. Some of these clauses may, however, be covered within the responses to policy questions surrounding the various articles. All other sections are covered as far as possible in the context that the UK opted out of the Directive.

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Much of the statistical data required by the study specification was not readily available and hence it was not possible to provide all the required statistics in the required format. Also, some of the data are provided from management information and not National Statistics. As such, the figures should be treated as provisional and therefore subject to change. Tables that contain provisional data have been footnoted to indicate this. The statistics nevertheless provide a good overall picture of those entering the UK as family members of sponsors ‘present and settled’ in the UK and the scale of such entry in comparison to those who enter the UK through other migration routes. Reasons for the UK’s ‘opt out’ of the Directive When Directive 2003/86/EC was put forward by the European Commission, the UK, on reflection, chose to opt out. This decision was taken as a result of the impact that the Directive would have on this route of legal migration, which would be incompatible with the UK’s border control policies. In continental Europe and particularly in the ‘Schengen’ states, people can cross borders with relative ease. The UK chooses to maintain tight border controls and is therefore protective of its current position. The family reunification Directive requires Member States to admit the spouse and minor children of spouses. First degree relatives in the ascending line, adult unmarried children and unmarried registered partners may be admitted at the discretion of the Member State. The UK chose not to opt into the Directive in order to retain domestic control over admissions policy in this area. However, in remaining outside this Directive, it is not the Government’s intention that the UK should be seriously out of line with our European partners. The UK does generally follow the guidance of the Directive, but has chosen to opt out in order to avoid any possible clashes with the current border control policies and any possible future changes. The UK is currently looking to tighten up the definition of what constitutes a family member, specifically in relation to family visitors. People who are refused entry clearance for the purpose of visiting family members may appeal to the Asylum and Immigration Tribunal (AIT). The current definition of qualifying family relationships is broad and, as announced in the Five Year Strategy3, the UK will look to tighten this definition so that there is a right of appeal only where the proposed visit is to a close family member. 2.2 Definitions Please see page two for details of UK definitions. 2.3 Methodology This report is largely a result of desk research. No primary research was undertaken. Information was taken from the Border and Immigration Agency (BIA, formerly IND), UKvisas and other relevant websites on the UK’s family reunification policies. Also, policy and operational colleagues from across BIA and UKvisas provided vital information and clarification, particularly with reference to the reasons why the UK opted out of the EC Directive. Statistical data relating to the flows and characteristics of those applying to enter and settle in the UK for family reunification purposes were kindly provided by colleagues in BIA’s Immigration Research and Statistics (IRS), and the BIA and UKvisas Data Management teams. A literature search was conducted in order to find further information with regards to family reunification in the UK, and particularly the effects of chain migration, but little arose from this search that related specifically to the UK. Using the UK’s monthly EMN newsletter to a network of national contacts, a request was made for information regarding family reunification. Unfortunately these contacts were unable to provide any information for this study. 3 Please see ‘Controlling our borders: Making migration work for Britain, Five Year Strategy’ for full details.

http://horizon/IND/Directorates/IND/Resources/PDF/five_year_plan.pdf


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3. National Family Reunification Policy in the United Kingdom. 3.1. Overview of national family reunification policy at the end of 2006 In order to provide an overview of the UK’s national Family Reunification Policy, an overview must first be provided of the immigration process. The summary flowchart4 on page 11 provides an overview of all major immigration routes into the UK. The shaded boxes provide an overview of the main paths taken by dependants applying to join sponsors present and settled in the UK through family reunification. Following the shaded boxes of the flow chart from the top right hand side of the page, it can be seen that applications for entry clearance must be made before reaching the UK border. Dependants applying to join sponsors present and settled in the UK must apply for entry clearance at this stage, in their country of origin (or country where they are living legally) before coming to the UK. These applications are dealt with by Entry Clearance Officers (UKvisas) at British Embassies, Consulates or High Commissions where applications for entry clearance are made overseas. Once an application has been decided by Entry Clearance Officers, dependants will find that they have either been refused leave to enter (in which case they cannot come to the UK to join their sponsor) or they have been granted leave to enter for a limited period or Indefinite Leave to Enter (ILE). Those granted leave to enter but not ILE will be allowed to enter the UK for a set period; once this period has been completed, they may apply for Indefinite Leave to Remain (ILR). Those granted ILE will not need to re-apply for ILR, as they have already been granted settlement. On receiving entry clearance for either limited leave to enter or ILE, applicants may come to the UK. Upon their arrival at the UK border, Immigration Officers (BIA) will check that the entry clearance documents are genuine and verify the dependant’s identity and nationality details. In cases where they assess a need for further investigation, they will also satisfy themselves that the circumstances under which the documents were issued have not changed, and that there are no previously unidentified risks associated with the entry of the dependant. Provided that all the above requirements are satisfied, the dependant will be granted entry to the UK. Once in the UK, those who were granted ILE can stay in the UK indefinitely without needing to reapply for ILR. Those granted indefinite leave (ILE or ILR) are entitled to settle in the UK but this leave is not permanent and irrevocable. Persons granted indefinite leave remain subject to immigration control and a two-year absence from the country (sometimes less) can result in cancellation. There are also limited grounds concerned with national security and terrorism on which indefinite leave can be revoked. Dependants who were granted leave to enter may apply for ILR once they have completed their initial probationary period of entry. In-country applications for ILR at this stage will be decided by Caseworkers (BIA) within the UK. Providing that all the relevant conditions for family reunification ILR under their route of entry have continued to be met, Caseworkers will grant dependants ILR. If all the conditions are not met (for example, if the relationship between the dependant and the sponsor has broken down) the application for ILR will be refused. On having been granted settlement (either ILE or ILR) applicants are entitled to settle in the UK and their status is no longer linked to or dependent on their sponsor. Some applicants may apply in the UK, in family formation and reunion categories, having entered the country in another capacity (such as a student studying in the UK for more than six months). If dependants are in the UK under an immigration status that does not prohibit them from ‘switching’ immigration categories, they may apply for an extension of leave to remain within a family

4 SOURCE: Control of Immigration: Statistics UK 2005 (Command Paper), page 4. This flowchart has been edited by IRS for clarification for its purpose in this report.

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reunification category. If they are refused leave to remain, they will need to leave the UK. However, if they are granted leave to remain, they may stay in the UK, and apply for ILR at a later stage.

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Summary flowchart - Control of Immigration5

Granted leave to enter

Visa national (1)Non-Visa national (1)

Stay in the UK

Border Control

Refused leave to enter

Returned to: country where journey originated; country of nationality; or

country where acceptable

Return home/ further travel

Apply for further leave to remain: in current immigration category; or

to switch to new immigration status

Breach a condition of leave granted or commit a

criminal offence

UK Border

Apply for indefinite leave to remain (settlement)

Enforcement/removal action initiated

Removed or Deported from the United Kingdom

Granted entry to the

UK

Granted settlement

Granted extension of leave to remain

Refused extension of leave to remain

Return home/ further travel

Permanent residence in the UK : no restrictions

Breach immigration rules or a condition of leave granted

Apply for asylum at the border

Apply for asylum in country

Grants of British CitizenshipDetailed statistics on Citizenship can be found in the Home Office Statistical

Bulletin 'Persons Granted British Citizenship United Kingdom'

Apply at a British mission overseas for leave to enter the United Kingdom

Granted indefinite leave to enter

Refused leave to enter

Granted asylum, humanitarian protection or discretionary

leave

Prior Entry clearance is mandatory (2)

Refused leave to remain in the United Kingdom

Refused leave to enter the UK and removed

Refused asylum, humanitarian protection or

discretionary leave

Refused settlement

Detained and/or granted temporary admission while

asylum claim processed

Persons

who evade border control

Illegally reside in the UK

UK Border UK Border

Legend

Refused asylum, humanitarian protection

or discretionary leave

Illegally reside in the UK

Likely pathPossible other paths

Granted indefinite leave to enter

(1) Data related to visa applications and decisions are published by UKvisas and can be found on UKvisas website. (2) Non-visa nationals seeking to enter the UK in a visa category or for > 6 months require a visa, whereas those seeking to enter the UK for ≤ 6 months do not.

5 Other possible, less common routes which deviate from these main paths illustrated have not been included to avoid overcomplicating this high level overview.

http://www.ukvisas.gov.uk/servlet/Front?pagename=OpenMarket/Xcelerate/ShowPage&c=Page&cid=1006977150151

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This explanation and summary flowchart provide a basic overview of the family reunification process in the UK. This aims to improve the ease of understanding of the information that follows, regarding both the UK’s family reunification policy, and the statistical data provided. a) Practice followed for the optional (“may”) clauses Owing to time constraints, this section has not been addressed. Many of the issues raised by these “may” clauses are, however, covered within the section of the report that discusses the UK’s family reunification policy in relation to the Directive. b) Conditions for granting entry and residence6 This section sets out the conditions for granting entry and residence for each of the different categories of dependants who may apply under the family reunification route. Spouses and civil partners In order for applicants to qualify to join their husband, wife or civil partner7 in the UK, they must show that: • they are legally married to each other or are in a civil partnership recognised in the UK;

• their husband, wife or civil partner is present and settled in the UK;

• they both intend to live together permanently as husband and wife or as civil partners;

• they have met each other before;

• together they can support themselves and any dependants without any help from public funds;

• they have suitable accommodation, which is owned or lived in only by themselves and their household, and where they and their dependants can live without any help from public funds;

• their husband, wife or civil partner is not under 18; and

• they themselves are not under 18.

If an applicant’s husband or wife has more than one wife or husband, only one will be allowed to join them in the UK. At first, successful applicants will be allowed to stay and work in the UK for two years. Near the end of this time, if these persons are still married (or still civil partners) and intend to continue living together, the applicant can apply for settlement in the UK. BIA will deal with the application for settlement and provide information on what further action needs to be taken. BIA will charge a non-refundable fee for applications to remain indefinitely in the UK. If the applicant and his/her husband, wife or civil partner have been living together outside the UK for four years or more, and the sponsor has been a British Citizen for four years or more, there will be no time limit on their period of stay in the UK. These applicants would immediately be granted

6 The conditions for each category in this section have been taken from the guidance notes for applicants, please see UKvisas website for full text. 7 The Civil Partnership Act 2004 came into operation on 5 December 2005 and enables a same-sex couple to register as civil partners of each other. A civil partnership can be registered in England and Wales in a register office or in approved premises.


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ILE. Those granted ILE will need to have previously entered the UK to take the knowledge of life in the UK test and demonstrate that they meet the English, Welsh or Scottish Gaelic language requirements. Please see pages 28 and 29 for further information on the knowledge of life test and language requirements. They would receive ILE only having taken and passed the test and successfully met the requirements. Applicants in this category who are unable to meet the English language and knowledge of life in the UK requirements may be granted entry for an initial period of two years. Applicants who have lived with their husband, wife or civil partner for less than four years, or whose sponsor has been a British Citizen for less than four years, would need to apply for two years leave to enter, which must be completed before they may apply for settlement (ILR). Fiancé(e)s and proposed civil partners In order for applicants to qualify to join their fiancé(e) or proposed civil partner in the UK, they must show that: • their fiancé(e) or proposed civil partner currently lives and is settled in the UK, or they are coming

to live permanently in the UK;

• they plan to marry or register a civil partnership within a reasonable time (usually six months);

• they plan to live together permanently after they are married or have registered a civil partnership;

• they have met each other before;

• there is somewhere for them and their dependants to live until the marriage takes place or a civil partnership is registered, and they will be able to live without help from public funds;

• they themselves and their dependants can be supported without working or claiming any help from public funds;

• their sponsor (fiancé(e) or proposed civil partner) is not under 18, on the date of the applicant’s arrival in the UK; and

• they themselves are not under 18, on the date of their arrival into the UK.

Successful applicants will be allowed to stay in the UK for six months but without permission to work. When they are married or have registered a civil partnership, they can apply for Further Leave to Remain (FLR) as a spouse for a period of two years which is known as the probationary period. If the FLR application is granted, the applicant will then be allowed to work in the UK. Near the end of this time, an application to settle in the UK can be made. Unmarried or same-sex partners In order for applicants to qualify to join their unmarried or same sex partner in the UK, they must show that: • their unmarried or same sex partner currently lives and is settled in the UK, or they are coming to

live permanently in the UK;

• any previous marriage, civil partnership or similar relationship, has permanently broken down;

• they have been living together in a relationship similar to marriage or civil partnership for two years or more;

• they have suitable accommodation which is owned or lived in only by themselves and their household, where they can live with their dependants without any help from public funds;

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• they can support themselves and any dependants without any help from public funds;

• they intend to live together permanently;

• Their sponsor (unmarried or same sex partner) is not under 18, on the date of the applicant’s arrival in the UK;

• they themselves are not under 18, on the date of their arrival into the UK.

The Entry Clearance Officer will need to see evidence of a two-year relationship. This may include: • documents showing joint commitments, such as bank accounts, investments, rent agreements or

mortgages

• letters linking the applicant and sponsor to the same address, and official records of joint address.

At first, successful applicants will be allowed to stay and work in the UK for two years. Near the end of this time, if they are still partners and intend to continue living together, an application can be made to settle in the UK. As with spouses and civil partners, if the applicant and their unmarried or same-sex partner have been living together outside the UK for four years or more, and the sponsor has been a British Citizen for four years or more, there will be no time limit on the period of stay in the UK for such applicants. These applicants would immediately be granted ILE. Again, those granted ILE will need to have previously entered the UK to take the knowledge of life in the UK test and demonstrate that they meet the English, Welsh or Scottish Gaelic language requirements. They would receive ILE only having taken and passed the test and successfully met the requirements. Applicants in this category who are unable to meet the English language and knowledge of life in the UK requirements may be granted entry for an initial period of two years. Children In order for applicants to qualify to join their parent(s) in the UK, the applicants or their parent(s) must show that: • the parent(s) live in the UK legally, with no time limit on their stay, or they are applying at the

same time as the child; or

• one parent is living and settled in the UK or is applying for settlement at the same time as the child, and has had sole responsibility for looking after the child; and

• the parent(s) can support the applicant without help from public funds;

• the parent(s) have enough accommodation, which they own or live in, where the applicant can live without help from public funds;

• the applicant is the child of the sponsor parent(s);

• the applicant is under 18 years of age; and

• the applicant cannot support him/herself financially in the country of origin, is not married or in a civil partnership and is not living independently of their parents.

In the statements above, ‘parent’ includes a step-parent where the natural father or mother is dead and either the father or mother of an illegitimate child. Adopted children are covered in the next section.

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If both of the applicant’s parents are settled in the UK, or if one parent already settled in the UK has sole responsibility for the applicant, they will normally be allowed to stay in the UK permanently from the date that they arrive, by being be granted ILE. If applicants travel to the UK with a parent they will normally be given permission to stay in the UK for the same length of time as their parent is given. A child cannot normally come to live in the UK if one parent is living abroad, unless the parent in the UK has sole responsibility for the child, or if there are special reasons why the child should be allowed to join the parent in the UK. Although the Rules normally require all applications to be decided in the light of the circumstances existing at the time of the decision, an exception to this is made, for dependent children who turn 18 whilst their application is being process, in accordance with paragraph 27 of the Rules. This states that no applicants should be refused entry clearance under paragraphs 296 to 316 of the Rules solely on the grounds that they have become over age between the receipt of the application and the date of the decision. Adopted children In order for applicants to qualify to join their adoptive parent(s) in the UK, the applicants or their adoptive parent(s) must show that: • the parent(s) currently live and are settled in the UK legally, with no time limit on their stay;

• the parent(s) can support the child and provide somewhere to live without needing help from public funds;

• the applicant cannot support him/herself financially, is not married and not living independently away from the parents;

• the applicant is under 18 years of age;

• the applicant was adopted when both parents lived together abroad or when one or the other parent was settled in the UK;

• the applicant has the same rights as any other child of the adoptive parents;

• the applicant was adopted because their birth parents were unable to care for him/her and there has been a full and genuine transfer of parental responsibility;

• the applicant has broken all ties with their birth family; and

• the applicant was not adopted just to make it easier to enter the UK.

It is now an offence for prospective adoptive parents to bring children into the UK to adopt them, unless they have met all the legal requirements of the adoption Acts & Regulations. The penalty for not following the legal requirements is an unlimited fine or up to 12 months’ imprisonment (or both). A foreign adoption order will be recognised in the UK only if: (a) it was made in a country that is included in the Adoption (Designation of Overseas Adoptions8) Order 1973 (such a country is known as a ‘designated’ country) or (b), it was made in a Hague Convention country and made specifically under the terms of the Hague Convention on inter-country adoption.

8 See Annex A for full list.

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If the child was adopted in a designated country, or under the terms of the Hague Convention in a Hague Convention country, and adoptive parents are settled in the UK, or if the sponsor alone is responsible for the child, the child will normally be allowed to settle in the UK (be granted ILE) from the date he or she arrives. If the child has not been adopted in a designated country, they will normally be allowed to stay in the UK for 24 months so the adoption process can continue through the UK courts. Parent, grandparent and other dependent relative A widowed parent or grandparent aged 65 or over, or parents travelling together (at least one of whom is 65 or over) or grandparents travelling together (at least one of whom is 65 or over), may qualify if: • they are completely or mainly financially dependent on children or grandchildren living and

settled in the UK;

• they have no other close relatives in their country of origin (or country where they are legally living) to help them;

• their children or grandchildren can support them without needing help from public funds; and

• their children or grandchildren have enough accommodation, which they alone own or live in, where they can accommodate their parent(s) or grandparent(s) without needing any help from public funds.

A parent or grandparent under the age of 65 may qualify if: • they are living in the most exceptional compassionate circumstances;

• they are completely or mainly financially dependent on children or grandchildren living and settled in the UK;

• they have no other close relatives in their country of origin (or country where they are legally living) to help them;

• their children or grandchildren can support them without needing help from public funds; and

• their children or grandchildren have enough accommodation, which they alone own or live in, where they can accommodate their parent(s) or grandparent(s) without needing any help from public funds.

Dependants who are aged over 18 and have a parent settled in the UK, or a sister, brother, aunt, uncle or any other relative settled in the UK, may qualify if they meet all of the conditions listed directly above and are living alone in their country of origin (or country where they are legally living). A parent, grandparent or other dependent relative who meets all requirement outlined above, will be granted ILE.

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c) Policy/ Practice with regard to specific Articles in Directive 2003/86/EC. This section sets out the policy and practice with regard to each of the Articles in Directive 2003/86/EC on family reunification. Article 59 Does the dependant or the sponsor submit the application for family reunification and where should it be submitted (country of origin or your Member State)? Dependants applying for limited leave to enter the UK or ILE need to submit their application form in their country of origin, or the country where they live legally, via the British Embassy, Consulate or High Commission in that country. For example, someone applying from the United States for leave to enter to join a sponsor who is ‘present and settled’ in the UK must do so via the British Consulate-General in Chicago, Los Angeles or New York. Applications can be made in a number of ways, for example by post, by courier, in person and online. The visa section at the British Embassy, Consulate or High Commission will provide information on the ways in which applications can be made; for example, some visa sections will only accept applications made online.10 If applicants are unable to make an online application they will need to fill in a visa application form (VAF 2 - Settlement). This can be downloaded from UKvisas’ website, or obtained free of charge from their nearest British mission overseas where there is a visa section. Dependants may also have to attend an interview during the application process. Dependants applying for ILR may submit their application within the UK when they are near the end of their probationary period of leave. In-country applications for ILR at this stage will be decided by BIA Caseworkers within the UK. Provided that all the relevant conditions for family reunification ILR under their route of entry have continued to be met, Caseworkers will grant dependants ILR. If all the conditions are not met (for example, if the relationship between the dependant and the sponsor has broken down) the application for ILR will be refused. On having been granted settlement (either ILE or ILR) applicants are entitled to settle in the UK and their status is no longer linked to or dependent on their sponsor. An application for a visit visa or EEA family permit can be made at any full service visa-issuing office. Those applying from within the EEA will need to show that they are living legally in an EEA Member State. 'Living legally' includes having a visit visa for the EEA Member State. For all other types of visa, applications should be made in the country of which the dependant is a national or lives legally. In some countries, those applying for a visa to stay in the UK for more than six months may need to be tested for active tuberculosis before the application can be accepted.11

9 Please see Annex E for details of Article 5. 10 UKvisas website provides information on whether or not applications can be made online. 11 This information was taken from the guidance notes for applicants. Please see the UKvisas website for full text.

http://www.visa4uk.fco.gov.uk/

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In line with article 5: Indicate who are the main actors involved, for example, in the examination and application (and, if relevant, the visa)? Who issues the working permit? Are there civic society organisations involved (e.g. NGOs)? Leave to enter the UK through the family route involves a sponsor who is present and settled in the UK, an applicant (in the categories set out in the previous sections) and the UK Government authorities.

The granting of applications is ultimately dependent on the Secretary of State being satisfied that each of the applicable requirements for the specific case, are met. In practice, the entry visa would be issued by UKvisas, as detailed in the previous section of this report. Applicants should then have the appropriate entry clearance documents to demonstrate the acceptance of their application. Airlines have a responsibility to ensure that passengers have the correct and valid documentation before they are allowed to board the flight. These documents will then need to be presented to Immigration Officers working at UK Border Control (part of the BIA). In some cases, documents will also be checked at the port of departure to the UK by Airline Liaison Officers (BIA). Immigration Officers will then confirm that applicants have the correct clearance papers and check that the person should be allowed to enter the UK, as noted on page 9. Applicants are granted either ILE or leave to enter for a set probationary period. For those granted limited leave to enter, once the probationary period has been completed they may apply for ILR. BIA Caseworkers within the UK will decide whether applicants for ILR at this stage have met the terms required in order to be granted settlement. How does the Member State assess the family tie (e.g. verification of documents, DNA sampling, specific checks and inspections when there is reason to suspect a fraud or partnership of convenience)? The UK makes use of various checking procedures to assess the family tie for family reunification applications. These procedures are outlined below. DNA Testing12 When an entry post receives an application for family reunification purposes, the Entry Clearance Officer (ECO) at UKvisas will in the first instance try to ascertain the bona fides of the application in the usual way using documentary and any other evidence available. If, after a short interview (or on the basis of documentary assessment) the ECO decides that substantial doubt exists about a relationship, the case should be referred to the Entry Clearance Manager (ECM) for authority to offer the applicant(s) and/or the sponsor an opportunity to take a DNA test. Although ECMs may delegate this responsibility to ECOs they retain overall responsibility for the testing regime. The UK Government’s DNA Scheme is funded and administered by UKvisas and allows DNA relationship testing to be carried out on entry clearance applicants. A British-based firm is contracted to carry out the tests. Although the contract is re-tendered every three years under joint scrutiny by the Foreign and Commonwealth Office and the Home Office, the cost of DNA testing falls entirely to UKvisas. Applicants may alternatively commission privately funded DNA tests if they wish to do so. 12 This information was taken from the Diplomatic Service Procedures (volume 1, chapter 14, point 14.21). Please see UKvisas’ website for full text.

http://www.ukvisas.gov.uk/servlet/Front?pagename=OpenMarket/Xcelerate/ShowPage&c=Page&cid=1035796441031#point%20twenty

http://www.ukvisas.gov.uk/servlet/Front?pagename=OpenMarket/Xcelerate/ShowPage&c=Page&cid=1035796441031#point%20twenty

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DNA tests arranged through the Government Scheme are provided free of charge to first time settlement applicants, where the ECO considers it would be desirable to aid the decision-making process. Tests are undertaken only with the agreement of the applicant(s) and sponsor, and the authority of an ECO. DNA tests are not compulsory and persons cannot be required to take a test against their will. If an applicant declines a test, that alone will not be grounds for refusing the application, although an ECO should record the fact together with the reason given (if any) by the applicant for declining the offer. Only the family members about whose claimed relationships the ECO has doubts should be offered a test. The DNA testing scheme is open to all Entry Clearance Posts. The DNA result reports will state the mathematical likelihood that the applicant(s) and sponsor are related as claimed as opposed to being unrelated, or related as the next closest family member. If the parties are not related as claimed, the report will indicate wherever possible the likely nature of the relationship. The ECO must assess the relationship(s) on the balance of probabilities from all the available evidence. Where DNA evidence is the only evidence available to the ECO, a report that suggests the applicants are related as claimed is considered sufficient. Where other evidence is available to the ECO, the strength of the DNA results is considered in conjunction with this. If the relationship between a sponsor and an applicant is in doubt, when a BIA Caseworker is assessing an in country application (an application made from within the UK), the sponsor and applicant must arrange and fund their own test from a company whose tests are accepted as valid for use in family law cases. Use of DNA testing results Unrelated to both parents If a child is unrelated to the claimed parents, the application should normally be refused. One or other of the claimed parents is a relative If one of the alleged parents is found to be a second degree relative such as an aunt or uncle and the child has been brought up as a member of the family unit, the ECO should review whether there are serious and compelling family or other reasons for considering the child's application under paragraph 297 (i)(f) of the Rules. Paragraph 297 of the Immigration Rules lays out the conditions which must be met in order for a child to join parent(s) present and settled in the UK, as outlined in section 3.1 (b) of this report. Section (i)(f) of paragraph 297 outlines the following condition: one parent or a relative must be present and settled in the UK or be admitted on the same occasion for settlement and there must be serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements must have been made for the child's care.13 Child not related to the claimed mother If a child is found not to be related to the claimed mother it is necessary to establish whether the child was born to another wife (particularly if the child is claiming citizenship by descent) and if so, whether the child lives with the natural mother or the claimed mother. Depending on circumstances, the provisions of one of the sub-paragraphs of Rules paragraph 297(i) may be appropriate. The sub-paragraphs of the Rules paragraph 297(i) outline the circumstances under which a child may seek to accompany or join their parent(s)11. 13 Please read paragraph 297 of the Immigration Rules for full details.

http://www.ind.homeoffice.gov.uk/lawandpolicy/immigrationrules/part8


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In a case where the DNA report shows that the child may have been born out of a previously undisclosed earlier marriage, it may be necessary to investigate questions of polygamy and legitimacy. Where the child's natural mother is not seeking entry or does not qualify for admission, the sponsor (i.e. the father) would normally have to demonstrate that he has exercised sole responsibility for the child's upbringing (as stated in the Rules paragraph 297(i)(e))11. Child not related to claimed father There may be any number of reasons why a claimed father may not be a child's natural father including the death of the first husband, rape or adultery. ECOs must handle such cases with sensitivity as it may not be obvious whether the husband or other family members know of the true relationship and there may be serious repercussions for the wife and child if the information is disclosed. Under these circumstances decisions are made on a case by case basis. Illegitimacy Where DNA evidence indicates that a child may be illegitimate, the ECO will try to establish the truth of the family circumstances by interviewing the child's mother as discreetly and sensitively as possible. Referring the case to the Home Office to interview the sponsor should be avoided. If no information can be elicited from the mother, the best way forward may be to seek information from the sponsor's representatives (depending on whether they are known to the ECO to be willing to respect the confidence of all parties). If it appears that an illegitimate child has been brought up as a child of the family, it will normally be appropriate to admit the child under paragraph 297(i)(f)11 (as discussed above). The fact that the sponsor may not be aware that the child is not his natural child would not preclude entry clearance. The ECO does not routinely disclose information about the DNA report to the sponsor or other family members in cases involving the illegitimate children. However under the Data Protection Act applicants and sponsors have a right to see personal information about themselves, which BIA or UKvisas may hold. If this information is requested, the requestor should normally be referred to their legal representatives. If the sponsor does not have legal representation and requests a copy of the DNA report then he/she is be asked to submit the request in writing with proof of identity, normally a copy of his/her passport. If the results also relate to a family member over the age of 18 then his/her consent to release the information will also be required. Copies of the report are not given to other family members who have not been tested. Validity of Marriage Under Section 11 of the Matrimonial Causes Act 1973 a marriage celebrated in the UK on or after 31 July 1971 shall be void on the following grounds. • It is not a valid marriage under the provisions of the Marriage Acts 1949 to 1970 where:

the parties are within the prohibited degrees of relationship; or

either party is under the age of 16; or

the parties have intermarried in disregard of certain requirements as to the formation of marriage.

• At the time of the marriage either party was already lawfully married.

• The parties are not male and female respectively.

• In the case of an actually polygamous marriage entered into outside England and Wales, either party was at the time of the marriage domiciled in England and Wales.

A void marriage is one that is deemed never to have existed, and in such cases a decree of nullity does not alter the status of the parties but is merely a declaration that they were never lawfully

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married. This is not the same as a decree of nullity of a voidable marriage which must be accepted as having existed until the date of the decree. Prior to 1 August 1971 there was no difference between void and voidable marriages because any annulment obtained before 1 August 1971 would render the marriage as being void regardless of the grounds.14 According to section one15 (spouses) of the Immigration Rules, where there are grounds for suspecting that the marriage is not genuine, further enquiries may be necessary. Immigration Caseworkers will target those cases where: • there is real reason to doubt from the evidence to hand that the marriage is not regarded as valid

in the UK (as outlined above);

• there is an allegation or other information suggesting that the marriage may not be genuine, that the marriage is a forced marriage or the couple are not living together;

• having been admitted as a fiancé(e), the applicant has married someone else.

Further investigations would not normally be warranted where there is no evidence to support any doubts. Leave will be granted in cases where some doubts exist but the evidence is considered to be insufficient to refuse or to justify making further enquiries. However, where leave is granted but there is good reason to believe that the marriage will not survive the officer will set the reasons for doubts on the file or GCID16, which will then be flagged. Caseworkers can then consider any subsequent application for settlement in the light of the information available and decide what enquiries, if any, are appropriate. It is not sufficient to simply minute the file or GCID to the effect that settlement should not be granted without full enquiries. In some cultures it is not the practice for a husband and wife to live together until a religious ceremony has taken place (even if they have been through a valid civil ceremony). Receipt of a religious and civil marriage certificate may, where there is no evidence to the contrary, be taken as sufficient evidence of the intention of the couple to live together. It should be noted that in the UK where a couple undergo a religious marriage in a building registered by law for the purpose of marriage they are not required to undergo a separate civil ceremony. Where this is the case the couple will be issued with the normal green style marriage certificate as well as a religious certificate.17 Where a religious marriage certificate has not been submitted, Caseworkers may, if there is reason to believe that the couple are not living together, request sight of one. In some cases, however, the couple may claim to have gone through a religious ceremony without the issue of a religious marriage certificate. Such a couple will be asked to provide a statement confirming that they are living together as husband and wife, together with other evidence, such as wedding invitations etc; showing that a religious ceremony has taken place. If there is no reason to doubt that the marriage is genuine then, provided the key points are satisfied, leave to remain will be granted for 2 years. The applicant will be advised that s/he may apply not earlier than 28 days before the end of the initial 2 year period, for indefinite leave to remain in the UK on the basis of the still subsisting marriage.

14 This information has been taken from section 4.1 of Annex B of the Immigration Rules. 15 Please see section one of the Immigration Rules for full details. 16 GCID - General Settlement Case Information Database 17 Please see Annex B, of the Immigration Rules in full for further information.

http://www.ind.homeoffice.gov.uk/documents/idischapter8annexes/section1/annexb.pdf?view=Binary

http://www.ind.homeoffice.gov.uk/documents/idischapter8/section1.pdf?view=Binary

http://www.ind.homeoffice.gov.uk/documents/idischapter8annexes/

http://www.ind.homeoffice.gov.uk/documents/idischapter8annexes/

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Certificate of Approval18 People subject to immigration control who wish to get married or register their civil partnership in the UK may need to apply for a Certificate of Approval (COA) from the Home Office. The COA rules do not apply to applicants within the following categories.

• British citizens.

• EEA nationals.

• Family member of EEA nationals (who may be third country nationals).

• Persons who have a certificate of entitlement giving them the right of abode in the UK.

• Persons who are not subject to immigration control.

Those coming to the UK from overseas to get married or register a civil partnership, must have a visa as either a fiancé(e) or proposed civil partner or marriage visitor or civil partnership visitor in order to give notice to marry or register their civil partnership to a registrar. Those already in the UK will need to either have settled status in the UK, or apply to the Home Office for a COA before giving notice to marry or register their civil partnership to a registrar. Those who only want to visit the UK to get married or register their civil partnership, but do not plan to stay for more than six months will need to apply for a marriage or civil partnership visitor visa or entry clearance. These rules apply, even if the applicant is a national of a country where there is normally no need for a visa to enter the UK. Applicants will be unable to give notice to marry or register their civil partnership to a registrar without the correct valid sticker in their passport or travel document. An application for a visa or entry clearance should be made at a British Embassy, Consulate, or High Commission in the applicant’s country of origin, or in the country overseas where they are normally legally resident. Whether applicants are overseas or already in the UK, they will need to give notice to marry or register their civil partnership to a registrar at one of a limited number of register offices designated for this purpose. Changes to the scheme following the High Court judgement of 10 April 2006 Following a judgement in the High Court on 10 April 2006, amendments were introduced for applicants who had insufficient leave to enter or remain in the UK to meet the published COA criteria when applying. Under these new procedures, applicants who have insufficient leave to enter or remain at the time of applying for a COA may be asked to submit further information in support of their application to enable BIA to be satisfied that the proposed marriage or civil partnership is genuine. Changes to the Certificate of Approval scheme following the Court of Appeal Judgement on 23rd May 2007 A judgement in the Court of Appeal on 23 May 2007 declared the pre-April 2006 original COA scheme unlawful. The Home Office is in the process of petitioning the House of Lords for permission to appeal against the Court of Appeal judgement.

18 This information has been taken from the Immigration Directorates Instructions, chapter 1, section 15.

http://horizon/ind/manuals/idi/Resources/DOCS/Ch01GeneralProvisions/15AuthorityToMarryInUK.doc

http://horizon/ind/manuals/idi/Resources/DOCS/Ch01GeneralProvisions/15AuthorityToMarryInUK.doc

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Whilst it is seeking to appeal against the Court of Appeal Judgement, the Home Office is currently considering that judgement with a view to ensuring that the scheme complies fully with the Court of Appeal judgement. The rules on COAs do not currently apply for those who plan to get married at an Anglican Church in England or Wales, after marriage bans or an ecclesiastical licence. However the policy of excluding these religious ceremonies from the (COA) scheme was declared unlawful by the High Court. The Government has indicated it will change the rules to bring such marriages within the scope of the scheme. The date of this change has not yet been determined. Giving notice to marry or register a civil partnership at a designated register office As noted earlier where applicants are subject to immigration control, they and the person they plan to marry or register their civil partnership with, need to give notice to marry or register their civil partnership at a designated register office. In England and Wales, both parties must have at least seven days residence in a registration district before they can give notice to marry or register their civil partnership. Those notices can be given at any designated register office, but both parties must attend together. In Scotland and Northern Ireland, the notice to marry or register a civil partnership can be given by post, so applicants will not normally have to attend in person, but may be asked to attend the Registrar's Office before the wedding or the civil partnership. The COA must be surrendered to the registrar when applicants give notice to marry or register their civil partnership. Those planning to marry or register their civil partnership in Scotland or Northern Ireland and who are travelling from abroad, will need to send a photocopy of the sticker in their passport to the registrar along with their marriage or civil partnership notice papers if giving notice by post. After giving notice to marry or register a civil partnership, applicants have to wait 15 full days before the wedding or registering of their civil partnership can take place in England and Wales (14 days in Scotland and Northern Ireland). The notice to marry or register a civil partnership is valid for one year from the date on which it was given in England, Wales and Northern Ireland, and for three months in Scotland. The marriage or civil partnership must take place within this time, or applicants will have to apply for another COA and give notice to marry or register their civil partnership again. How does a Member State recognise a marriage? Marriage taking place in the UK All marriages that take place in the UK must, in order to be recognised as valid, be monogamous and must be carried out in accordance with the requirements of the Marriage Act 1949, as amended by the Marriage Acts of 1970, 1983 and 1994, the Marriage Regulations of 1986 and other related Acts (e.g. the Children Act 1989). A claim to be married in the UK must be supported by a marriage certificate issued by one of the following: • Superintendent Registrar;

• Registrar;

• Clergyman (of Church of England or Church in Wales);

• Authorised person of a Non-Conformist Church

• The General Register Office;

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• Secretary of Marriage for a Synagogue; or

• Registering Officer for the Society of Friends.

It must be conducted in a building approved for civil marriages under the Marriage Act of 1994. Marriage taking place outside the UK The recognition of any marriage which has taken place outside the UK is governed by the following. • Is the type of marriage one recognised in the country in which it took place?

• Was the actual marriage properly executed so as to satisfy the requirements of the law of the country in which it took place?

• Was there anything in the law of either party's country of domicile that restricted his/her freedom to enter the marriage?

If the answers to the above questions are respectively, "yes", "yes" and "no" then the marriage is valid whether or not it is polygamous; the next section provides further detailed information regarding polygamous marriages. When making an application as a spouse, supporting documentation must be included in order to show the applicant qualifies for entry as a husband, wife or civil partner. If these supporting documents are not included with the application it may be refused. As a guide, the following should be included: • Birth Certificate;

• Marriage Certificate (if the parties are married) or civil partnership certificate (if they have registered a civil partnership);

• sponsor’s Birth Certificate;

• recent statements or letters from the sponsor’s UK employer, bank, local authority or building society to show what support and accommodation will be available for the applicant in the UK;

• letters from the applicant and sponsor that are relevant to the application;

• evidence that the sponsor is settled in the UK (this can be a copy of his/her passport or registration certificate that has been confirmed as a true copy, i.e. certified).19

If the applicant has been married or in a civil partnership before, one of the following documents is also needed:

a divorce certificate;

a final dissolution order; or

the applicant’s previous husband's, wife's or civil partner's death certificate.

19 This information has been taken from Annex B of the Immigration Rules.



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Are polygamous marriages recognised and, if so, under what conditions? Whether a marriage is to be regarded as monogamous or polygamous must initially be determined by where the marriage is celebrated. If the law of the country where the marriage takes place prohibits polygamy (as English law does) then all marriages celebrated under that law must be monogamous, regardless of whether a party to such a marriage is permitted to practice polygamy in his country of domicile. Such a person can nevertheless contract a valid marriage in the UK, as long as he is not already married, either in the UK or abroad. Any further marriage contracted in the UK would be void as it would be bigamous. If the country in which the marriage is celebrated permits polygamy, any marriage contracted there by a person whose country of domicile permits him to enter into a polygamous union will be polygamous. The most important aspect of the Rules for polygamous spouses is that it is not the order in which polygamous spouses marry that is crucial but the order in which they go to the UK. According to Annex G of the Immigration Rules (Part 8)20 the application of a spouse within polygamous marriage for leave to enter/remain in the UK should be refused if the applicant’s husband is also married to another woman who has entered the UK since marriage21 (or been granted a certificate of entitlement in respect of the right of abode in the UK or granted an entry clearance to enter the UK as the wife of the applicant’s husband), and the Secretary of State is not satisfied that the applicant was either admitted to the UK before 1 August 1988 for the purpose of settlement as the wife of their husband or that the applicant has been in the UK19 at any time since their marriage when there was no such other woman living who has entered the UK under the circumstances outlined above. This also applies to women bringing more than one husband to the UK. Children of polygamous spouses If a polygamous spouse is disqualified by the Immigration Act/Rules from entering the UK, any children he or she had by that spouse may not qualify for entry to the UK, depending on the circumstances and in particular the operation of the Legitimacy Act 1976. Polygamous spouses entering in their own right A polygamous spouse may have an entitlement to enter the UK in his or her own right - for example as a returning resident. A person who obtained settlement in the UK on the basis of a marriage which has since ended and who travels to another country where s/he enters into an actually polygamous marriage, has the right to return to the UK under Paragraph 18 of the Rules, provided that s/he does so within the 2 year limit. A polygamous spouse may also enter in his or her own right as a visitor or a student, provided of course that he or she meets in full the requirements of the relevant paragraphs of the Rules. Such a spouse will not, however, qualify for entry clearance in a temporary capacity leading to settlement (for example, as a spouse of a work permit holder) if that would result in the formation of a polygamous household in the UK. Termination of previous marriage Even where it is suspected that a “divorce of convenience” has taken place and that a man, for example, is continuing to live with a previous wife, entry clearance cannot be withheld from a second wife, even if a polygamous household will be created as a result. A polygamous spouse may apply for entry clearance and support the application by claiming that a previous marriage (which

20 Please see Annex G of the Immigration Rules (Part 8) for full text. 21 Other than as a visitor, an illegal entrant, or in circumstances whereby a person is deemed by section 11(1) of the Immigration Act 1971 not to have entered the UK.

http://www.ind.homeoffice.gov.uk/documents/idischapter8annexes/section1/annexg.pdf?view=Binary

26

would otherwise disqualify him or her) has been dissolved or terminated by the death of the spouse concerned. ECOs will be wary of death and divorce certificates in such circumstances, especially where non-judicial processes or customary laws are involved. Potentially polygamous marriages Hitherto, potentially polygamous marriages (i.e. a marriage celebrated under a law which permits polygamy) where the spouse is domiciled in the UK are considered invalid under UK law. Potentially polygamous marriages where the husband/wife is domiciled in the UK have been considered valid in UK law since in 1982. An amendment to the Matrimonial Causes Act 1973 by the Private International Law (Miscellaneous Provisions) Act has served to legitimate all potentially polygamous marriages where they are, in fact, monogamous. As a result of this amendment to the 1973 Act, in cases where it is clear that the marriage is actually monogamous, potentially polygamous spouses can now be issued with husband/wife entry clearances, subject to the usual criteria of the Rules being met. Such marriages will, however, be deemed to be made void by any subsequent marriage by one of the parties or by an annulment.22 In line with Article 5: Under which circumstances is the family tie defined as being disrupted? What happens if a family relationship has been disrupted, does the Member State take action? Is there tension regarding the definition of disruption of the family tie between the guidelines of the European Court and national legislation? For the purposes of this report, a disrupted family tie is being regarding as a family tie which has ended, for example if a marital relationship has broken down and ended. All passengers who have an entry clearance endorsed "Husband" or "Wife" are granted leave to enter for two years and advised that, provided the marriage is still subsisting, they can apply to BIA for ILR not earlier than 28 days before their leave is due to expire. If the marriage is not subsisting at the end of this two-year period, ILR will not be granted as the relationship will have been disrupted. Similarly, unmarried or same sex partners in possession of an entry clearance endorsed "ACCOMPANYING/TO JOIN PARTNER [partner's surname and first initial]”, and who have evidence that the partner is settled in the UK or being admitted on the same occasion for settlement are granted leave to enter for two years and are advised to apply to BIA for ILR (on the basis of the still subsisting relationship) not earlier than 28 days before their leave is due to expire. Passengers who hold an entry clearance as a fiancé(e) or proposed civil partner are granted leave to enter for six months on and are advised to apply to BIA for an extension of stay once the marriage or civil partnership has taken place and before their leave expires. If, within the initial six-month period, a marriage or civil partnership has not taken place, an acceptable reason for this must be provided. If the relationship has broken down, or the applicant has married someone other than their sponsor, ILR would not be granted as the relationship will have been disrupted.

22 This information has been taken from the Diplomatic Service Procedures. Please see point 3.19 for full text.



27

“Tensions” There are some differences between family reunification rights under Community law for EEA nationals (Directive 2004/38/EC) and UK immigration provisions: definitions of family members are different (Note Article 2 of directive) and include the concept of “extended” family members (Article 3). The UK’s definition of family members is much tighter than those outlined in Directive 2004/38/EC (regarding free movement of EU nations and their family members). The UK defines children (for the purpose of joining sponsors as family members) as being under the age of 18, whereas Directive 2004/38/EC defines children as being aged below 21. The UK also has tighter rules regarding extended family members. A specific area of discrepancy was highlighted in from the European Court of Justice case of Surinder Singh: nationals of a Member State who go with their non-EEA family members to another Member State to exercise a Treaty right in an economic capacity, will on return to their home state, be entitled to bring their non-EEA family members to join them under EC law. For example, this would apply to a British national who has lived and worked in Germany with his/her non-EEA national spouse/children and is now returning to the UK with his/her family. In UK law, the rights are more limited. The Surinder Singh judgement is incorporated into the 2006 regulations in Regulation 9, and is confined to those cases where a British national has worked or been self-established in an EEA State. As for non-EEA national family members generally, the non-EEA national family members of such a British national will only have a right to return to the UK with him/her under the 2006 Regulations if they can demonstrate lawful residence in a Member State. The free movement Directive is also causing concern in one respect, i.e. that it is not possible for Member States to charge for issuing free movement documentation, because this is seen as confirmation of status, rather than granting status. This means that, although the number of applications under the free movement directive is increasing, there is no income for dealing with these applications and an additional burden is therefore being placed on the services of BIA. Under which circumstances/conditions are dependants allowed to enter a Member State at the same time as the sponsor? In general, dependants entering the UK at the same time as the sponsor would not be recorded within the Control of Immigration Statistics figures for those entering within the “Family Formation and Reunion” category. Dependants are allowed to enter the UK at the same time as their sponsor provided that their sponsor is present and settled in the UK, but has left to accompany them into the UK. It would also be possible for a sponsor who is present and settled in the UK to leave the country temporarily and return to the UK to join their dependant, provided that they also intend to live together.

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Article 723 Does the Member State require the sponsor to have adequate accommodation, sickness insurance and resources (reference Article 7.1 a-c Directive)? UK immigration rules regarding families require that: • there will be adequate accommodation for the parties and any dependants without recourse to

public funds, in accommodation that they own or occupy exclusively; and

• the parties will be able to maintain themselves and any dependants adequately without recourse to public funds.

There is no set minimum income, as each case is considered individually. The Caseworker / Entry Clearance Officer will look at the funds available to the sponsor and use discretion to decide whether these would be sufficient to support the applicant(s) without recourse to public funds. Medical insurance is not required; family members are entitled to healthcare and education and can make use of these services before settlement is granted. This is also the case for dependants joining a sponsor who has been granted refugee status. Does the Member State require integration measures in the case of family reunification? For the dependant? For the Sponsor? What kind of integration measures does the Member State require? The UK’s integration requirements for dependants applying to join a sponsor who is ‘present and settled’ in the UK are outlined in Part 8 of the Immigration Rules. The Rules require applicants to have sufficient knowledge of English, Welsh or Scottich Gaelic language and sufficient knowledge about life in the UK, unless s/he is under the age of 18 or aged 65 or over at the time s/he makes the application. In December 2006, the Immigration and Nationality Directorate (since 1st April 2007, the Border and Immigration Agency) announced that all those seeking to live in the UK permanently would have to demonstrate knowledge of English, Welsh or Scottish Gaelic and of life in the UK 24 before being granted settlement.25 There are two ways by which people can demonstrate they meet the language and knowledge of life requirements for settlement. Those with language ability at or above English for Speakers of Other Languages (ESOL) Entry 3 may take a specially developed short test. Tests are taken on a computer at one of around 100 Life in the UK Test Centres in the UK and consist of 24 questions based on information from the handbook “Life in the UK: A Journey to Citizenship”. Those with English language skills below ESOL Entry 3 may meet the requirements by successfully progressing from one ESOL level to the next on a language course involving learning materials which incorporate information about life in the UK. A person who successfully completes one of these programmes will not have to take separate tests in English and knowledge of life in the UK. Those who enter the UK through a family reunification route are required to pass the Life in the UK test, and fulfil the English, Welsh or Scottish Gaelic language requirements when they apply for

23 Please see Annex E for details of Article 7. 24 Further information regarding this citizenship test can be found via the Life in the UK test website. 25 For further information of this announcement please see Home Office press release of December 2006.

http://www.lifeintheuktest.gov.uk/

http://press.homeoffice.gov.uk/press-releases/migrants-english-tests

http://press.homeoffice.gov.uk/press-releases/migrants-english-tests

29

settlement, once their probationary period is complete, unless they fall into one of the exempt categories. Applicants aged under 18 or 65 or over or who have a physical or mental impairment may not have to meet with the language requirement or the knowledge of Life in the UK requirement. Similarly, applicants who have significant physical and/or mental health condition(s) or incapacity may be exempt if their condition would prevent them from studying for or taking the knowledge test, or from studying for an ESOL qualification. Exemption on these grounds will be given only in exceptional cases. Those applying under the following family reunification categories do not need to satisfy the knowledge of life in the UK or language requirements.

• Spouses of foreign and commonwealth citizens on discharge from HM Forces (including Gurkhas). Spouses in this category would be subject to the same qualifying period (of two years) as other spouses entering the UK through family reunification, unless they can prove that the marriage has been subsisting outside the UK for four years or more.

• Bereaved Spouses, Unmarried Partners and Civil Partners.

• Parents/Grandparents/Other Dependant Relatives - applications made under Paragraph 317 of the Immigration Rules26 who would not already be exempt owing to their age and/or the most exceptional compassionate circumstance under which they are being granted ILE.

• European Nationals and their non-EEA family members, making an application under the Free Movement of Persons provision (i.e. not based on the UK Immigration Rules).

People in these additional categories will, however, have to meet the knowledge of English and UK life requirements if they apply for citizenship, unless they then qualify for exemption on age, physical or mental health or incapacity grounds. Introducing language and knowledge of life requirements for applicants wishing to settle in the UK brings the requirements for those looking to settle in the UK into line with the requirements for those applying for British nationality. The aim of these provisions is to help those wishing to settle in the UK or become British citizens to learn English and have practical knowledge of life in the UK and an understanding of our democratic traditions to aid integration and help them work, contribute and participate in society. The aim of introducing knowledge of life and language testing at settlement stage is to ensure that migrants have an understanding of life in the UK and the requisite skills to allow them to play a full and active part in society. Article 827 Does the Member State require the Sponsor to have stayed lawfully in its territory for a certain period before having his/her family members join him/her? Sponsors will need to have lived lawfully in the UK usually for a period of five years (this may vary depending on their immigration status) in order to have been granted settlement.

26 Please see paragraph 317 of the Immigration Rules for further details. 27 Please see Annex E for details of Article 8.


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Article 928 29 Did the Member State confine the application of Chapter V of the Directive to refugees whose family relationships predates their entry? The rights of refugees in the UK regarding family reunification and, since 30 August 2005, those persons granted Humanitarian Protection for five years, are as follows.29 The families of asylum seekers, whose claims have not been determined or have been refused, do not qualify to join them in the UK for family reunion purposes. If a person has been recognised as a refugee, only pre-existing families are eligible for family reunion, i.e. the spouse, civil partner, unmarried or same sex partner and minor children who formed part of the family unit prior to the time the sponsor sought asylum. Other members of the family (e.g. elderly parents) may be allowed to come to the UK if there are compelling, compassionate circumstances (see below). The parents and siblings of a child who has been recognised as a refugee are not entitled to family reunion. Such applications are considered under the criteria above, i.e. there must be compelling, compassionate circumstances in order for the family to be granted entry to the UK. Family reunion may be refused if family members fall within the terms of one of the exclusion clauses in the 1951 UN Convention, which states that an individual has not: • committed a crime against peace, a war crime or a crime against humanity;

• committed a serious non-political crime;

• been guilty of acts contrary to the purposes and principles of the United Nations.

If a person has been recognised as a refugee or has been granted five-year Humanitarian Protection in the UK, family members are normally granted status and leave in line with them. However, it may not always be possible to recognise the family abroad as refugees - e.g. they may have a different nationality to the sponsor or they may not wish to be recognised as refugees. However, if they meet the criteria set out above, they should still be admitted to join the sponsor. The sponsor is not expected to meet the usual maintenance and accommodation requirements of the Immigration Rules, but the spouse/civil partner and dependants must show an intention to live together permanently. Spouses or civil partners who married or entered into a civil partnership after the sponsor came to the UK to seek asylum must meet the normal spouse/civil partner settlement requirements as set out in the Immigration Rules (Part 8). It follows therefore that any "post-flight" minor dependants must also qualify under the relevant "dependant" paragraphs of the Rules. This applies where the sponsor has refugee status and indefinite leave to remain.30 Dependent children over the age of 18 and other dependent relatives (e.g. mother, father, brother, sister) do not qualify for Family Reunion under this section of the Rules. However, if there are compelling compassionate circumstances, which warrant consideration of the application "outside the Rules”, ECOs have discretion to refer applications to BIA for a decision on compassionate grounds. However, ECOs must be satisfied that the applicant was genuinely dependent on the sponsor before his/her flight to seek asylum. 28 Please see Annex E for details of Article 9. 29 This information has been taken from the volume 1, chapter 16 of Diplomatic Service Procedures. 30 Part 8 of the Immigration Rules does not apply to those with 5 years limited leave. Policy on post flight relationships is under review for Refugees who have been granted 5 years limited leave and for those granted Humanitarian Protection with 5 years limited leave.


31

If there are no compelling compassionate circumstances, which warrant a referral to BIA, other dependent relatives should be considered under paragraph 31731 of the Rules, which lays out the criteria that must be met by parents, grandparents and other dependent relatives of persons present and settled in the UK as discussed in section 3.1(b) of this report. This applies where the sponsor has refugee status and indefinite leave to remain. Article 1232 What choices did the Member State make regarding the options it had in this article? Neither refugees nor their family members need to provide evidence that they will not need to access public funds in order for the applicant to be granted leave to enter as a family member. This is the case provided that the relationship was existing before the sponsor fled to seek asylum and subsequently granted refugee status. This also applies to cases where the sponsor has been granted Humanitarian Protection (from 30th August 2005), as these cases are treated in the same way as those where the sponsor is a refugee. Spouse or civil partner The requirements to be met by a person seeking leave to enter or remain in the UK as the spouse or civil partner of a refugee are that: • the applicant is married to or the civil partner of a person granted asylum in the UK;

• the marriage or civil partnership did not take place after the person granted asylum left the country of his former habitual residence in order to seek asylum;

• the applicant would not be excluded from protection by virtue of article 1F of the United Nations Convention and Protocol relating to the Status of Refugees if s/he were to seek asylum in his/her own right;

• each of the parties intends to live permanently with the other as his or her spouse or civil partner and the marriage or partnership is subsisting; and

• if seeking leave to enter, the applicant holds a valid UK entry clearance for entry in this capacity.

Limited leave to enter the UK as the spouse or civil partner of a refugee may be granted provided a valid UK entry clearance for entry in this capacity is produced to the Immigration Officer on arrival. Limited leave to remain in the UK as the spouse or civil partner of a refugee may be granted provided the Secretary of State is satisfied that each of the requirements above is met. Unmarried or same-sex partner The requirements to be met by a person seeking leave to enter or remain in the UK as the unmarried or the same-sex partner of a refugee are that: • the applicant is the unmarried or same-sex partner of a person granted asylum in the UK on or

after 9th October 2006;

• the parties have been living together in a relationship akin to either a marriage or a civil partnership which has subsisted for two years or more;

31 Please see the Immigration Rules to read paragraph 317 in full. 32 Please see Annex E for details of Article 12.


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• the relationship existed before the person granted asylum left the country of his/her former habitual residence in order to seek asylum;

• the applicant would not be excluded from protection by virtue of paragraph 334(iii)33 of the Immigration Rules or article 1F of the Geneva Convention if s/he were to seek asylum in his/her own right;

• each of the parties intends to live permanently with the other as his or her unmarried or same-sex partner and the relationship is subsisting; and

• if seeking leave to enter, the applicant holds a valid UK entry clearance for entry in this capacity.

Limited leave to enter the UK as the unmarried or same-sex partner of a refugee may be granted provided a valid UK entry clearance for entry in this capacity is produced to the Immigration Officer on arrival. Limited leave to remain in the UK as the unmarried or same sex partner of a refugee may be granted provided the Secretary of State is satisfied that each of the requirements above is met. Child The requirements to be met by a person seeking leave to enter or remain in the UK in order to join the parent who has been granted asylum in the UK are that the applicant: • is the child of a parent who has been granted asylum in the UK;

• is under the age of 18;

• is not leading an independent life, is unmarried and is not a civil partner, and has not formed an independent family unit;

• was part of the family unit of the person granted asylum at the time that the person granted asylum left the country of his/her habitual residence in order to seek asylum;

• would not be excluded from protection by virtue of article 1F of the United Nations Convention and Protocol relating to the Status of Refugees if s/he were to seek asylum in his/her own right; and

• if seeking leave to enter, holds a valid UK entry clearance for entry in this capacity.

Limited leave to enter the UK as the child of a refugee may be granted provided a valid UK entry clearance for entry in this capacity is produced to the Immigration Officer on arrival. Limited leave to remain in the UK as the child of a refugee may be granted provided the Secretary of State is satisfied that each of the requirements above is met.34 Article 1335 What is the duration of the first residence permit granted to the dependant? As the UK does not issue residence permits, the information provided below states the period of leave initially granted to the applicant, which must be completed before they can apply for ILR. Fiancé(s)s and proposed civil partners Successful applicants will be allowed to stay in the UK for six months but without permission to work. When they are married or have registered a civil partnership, they can apply for a two-year 33 Please see paragraph 334(iii), part 11 of the Immigration Rules for full details. 34 This information has been taken from Part 11 of the Immigration Rules. Please see paragraphs 352A-E for full text. 35 Please see Annex E for details of Article 13.



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extension to their visa and, if the application is granted, will then be allowed to work. Near the end of this time, an application for ILR can be made. Spouses and civil partners At first, successful applicants will be allowed to stay and work in the UK for two years. Near the end of this time, if these persons are still married and intend to continue living together, they can apply to stay permanently in the UK. If applicants and their husband, wife or civil partner have been living together outside the UK for four years or more, and sponsor has been a British citizen for four years or more, there will be no time limit on the period of stay in the UK for such applicants. Unmarried and same sex partners: At first, successful applicants will be allowed to stay and work in the UK for two years. Near the end of this time, if they are still partners and intend to continue living together, an application can be made to stay in the UK permanently. If the applicant and unmarried or same-sex partner have been living together outside the UK for four years or more, the applicant will be granted ILE when the visa is issued and there will be no time limit on how long s/he can stay in the UK. Children: If both of the applicant’s parents are settled in the UK, or if one parent, already settled in the UK, has sole responsibility for the applicant, the child will normally be allowed to stay in the UK permanently from the date that they arrive, by being granted ILE. If an applicant travels to the UK with a parent, he/she will normally be given permission to stay in the UK for the same length of time as his/her parent was given. For example, if his/her parent is granted limited leave to enter to join a spouse, the child will be granted leave to enter in line with his/her parent, and provided that his/her parent successfully completes the probationary period, both parent and child will be granted ILR at the end of this period. Adopted Children: If the child was adopted in a designated country, or under the terms of the Hague Convention in a Hague Convention country, and the adoptive parents are settled in the UK, or if the sponsor alone is responsible for the child, the child will normally be allowed to settle in the UK (be granted ILE) from the date he or she arrives. If the child has not been adopted in a designated country, they will normally be allowed to stay in the UK for 24 months so the adoption process can be completed through the UK courts. For parents, grandparents or other dependent relatives: Dependants within this category who have their applications accepted will be granted ILR, and would therefore have no time limitations placed on their stay.

34

Article 1436

What choices towards the access of a dependant to employment and self-employed activity has the Member State made? Successful applicants who enter as spouses or civil partners or unmarried or same sex partners will initially be allowed to stay and work in the UK for two years. Those entering as fiancé(e)s or proposed civil partners will initially be allowed to stay in the UK for six months but without permission to work. Once the fiancé(e) or proposed civil partner and the sponsor are married or have registered a civil partnership, applicants can apply for a two-year extension to their visa and, if the application is granted, will then be allowed to work. In line with article 14: Do dependants receive specific rights with regard to (social) benefits, consolidation of residence. If so, do they have to reside in the Member State for a certain amount of time before they can apply for these benefits? Are there any other conditions? Applicants must show that there will be adequate accommodation for the parties and any dependants without recourse to public funds in accommodation which they own or occupy exclusively; and the parties will be able to maintain themselves and any dependants adequately without recourse to public funds.37 The following is a list of those benefits that are classified, for immigration purposes, as public funds. • Income-based jobseeker's allowance

• Income support

• Child tax credit

• Working tax credit

• A social fund payment

• Child benefit

• Housing benefit

• Council tax benefit

• State pension credit

• Attendance allowance

• Severe disablement allowance

• Carer’s allowance

• Disability living allowance

• An allocation of local authority housing

• Local authority homelessness assistance

Public funds do not include the benefits based on National Insurance contributions, such as the following. • Contribution-based jobseeker's allowance

36 Please see Annex E for details of Article 14. 37 This information has been taken from the Border and Immigration Agency’s application information.

http://www.bia.homeoffice.gov.uk/applying/generalcaseworking/publicfunds

http://www.bia.homeoffice.gov.uk/applying/generalcaseworking/publicfunds

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• Incapacity benefit

• Retirement pension

• Widows’ benefit and bereavement benefit

• Guardian’s allowance

• Statutory maternity pay

Health care and education also do not count as public funds and family members are entitled to these services and may make use of them before they are granted settlement. Dependants joining a sponsor who has been granted refugee status will also be eligible for free health care and education. Article 1538 When does the Member State entitle a dependant (upon application) an autonomous residence permit (independently from the sponsor)? Once applicants are granted settlement (either ILE or ILR) they may stay in the UK with no restrictions and no time limit. Their immigration status is no longer dependent on their relationship with the sponsor once settlement has been granted. The conditions (including duration of residence) for settlement vary by family reunification category and have been explained in detail in earlier sections of this report (pages 12 to 16). Article 1638

When does the Member State reject an application for entry and residence for the purpose of family reunification, or, if appropriate, withdraw or refuse to renew a dependant’s residence permit? Applications are refused in cases where the requirements for entry outlines in the appropriate section of the Immigration Rules for Family Members (Part 8) 39 or Asylum (Part 11)40 are not all fulfilled. These requirements are explained in earlier sections. Article 1738 Are there national regulations for the case described in this article? Article 17 states: Member States shall take due account of the nature and solidarity of the person’s family relationships and the duration of his/her residence in the Member State and of the existence of family, culture and social ties with his/her country of origin where they reject an application, withdraw or refuse to renew a residence permit or decide to order the removal of the sponsor or members of his family. The nature and solidarity of family relationships are taken into full account when considering applications made by family members of sponsors present and settled in the UK. Consideration is

38 Please see Annex E for details of Articles 15, 16 and 17. 39 For full details please see Immigration Rules Part 8. 40 For full details please see Immigration Rules Part 11.




36

given to whether the relationship is subsisting. Where there is doubt as to whether a family tie is of the nature described in the application, DNA testing can be offered when relevant. The duration of the dependant’s residence is considered only when deciding whether settlement should be granted after the probationary period has been completed. In these cases it is simply a matter of ensuring that the required probationary period has been completed, and if so, whether the relationship is subsisting. Social and cultural ties are taken into consideration when deciding on applications where an ‘other dependent relative’ is looking to join a sponsor. If it can be shown that this relative cannot be supported within his/her home country by other family members or the community, this will strengthen the application to join a sponsor who can support them in the UK. Residence permits are not issued in the UK; however, these factors are taken into consideration at various stages of the application process either for leave to enter, or for settlement upon completion of the probationary period. Article 1841

Are there examples of successful legal challenges when an application for family reunification is rejected or a residence permit is either not renewed or removal ordered? Successful legal challenges have been made and this is specifically allowed for in the system: for some types of application, there is a right of appeal if a visa is refused. The most common are applications for settlement by children, dependent relatives, spouses and fiancé(e)s. The ECO will let applicants know if they have right of appeal and give them the appeal forms they need. In such cases, the ECO will provide applicants with three documents: • the written Notice of Refusal (explaining why the ECO has refused the visa); • the Notice of Appeal form AIT2 (form to be completed by the applicant, explaining why they

think the ECO was wrong to refuse their visa); • a leaflet explaining how to fill in the Notice of Appeal form. Appeals can be lodged directly with the Asylum and Immigration Tribunal (AIT) in the UK or the appeal form can be sent to the overseas visa section where the visa was refused. The visa section will then forward it to the AIT in the UK. Applicants cannot send the form to both the AIT and the overseas visa section. A copy of the Notice of Refusal must be sent with the Notice of Appeal form. These must be sent in together, no later than 28 days after the Notice of Refusal is received by the applicant. There is no charge for appealing against a visa being refused. An Immigration Judge will hear such appeals in the UK. When considering an appeal, the Immigration Judge will look at all the evidence sent in by the applicant’s representative, as well as by the Home Office. As the executive body with overall responsibility for immigration, the Home Office would collect the information from UKvisas (from the relevant ECO) to be presented to the Judge. The judge will decide the appeal on the individual details of the case and in line with the Immigration Rules.42

41 Please see Annex E for details of Article 18. 42 This information has been taken from UKvisas Guidance on Appeals.



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d) Application to certain groups As mentioned previously, there are considerable differences between family reunification rights under Community law for EEA nationals (Directive 2004/38/EC) and UK immigration provisions, definitions of family members are different (note Article 2 of the Directive), and include the concept of “extended” family members (Article 3). The process is also taken from a rights-based approach, meaning the UK only confirms status in most circumstances (Article 2 cases), rather than granting it. There are also ongoing legal challenges in this area, concerning the basis on which a UK national can assert community family reunification rights. The groups that have different terms to fulfil, in relation to each other, when sponsoring a family member to enter the UK are: UK nationals, EEA nationals and Third Country Nationals. An EEA national will need to fulfil the terms of Article 2 of Directive 2004/38/EC only, which are less restrictive than those terms set out in the UK Immigration Rules, which apply to UK nationals. Therefore, an EEA national may have less difficulty in bringing a family member who is a Third Country National into the UK than a British citizen would. For Third Country Nationals sponsoring a family member, the rules that apply depend on the sponsor’s immigration basis and the basis on which s/he is settled in the UK. 3.2. Development of family reunification policy between 2002 and 2006 Is the implementation of Directive 2003/86/EC already achieved? If so, what was the date? This question is not applicable to the UK as the decision was taken to opt out of Directive 2003/86/EC. Using the basis of the Directive articles as in Section 3.1, indicate how family reunification policy has developed in the reference period (2002-2006). When doing so:

- Give a general overview of the political and public debates on family reunification during the reference period.

- Are there any (public) discussions in the Member State concerning the content of the directive?

- Are there any plans to change family reunification policy in the near future? In 2005, the Home Office published a paper entitled ‘Controlling our borders: Making Migration Work for Britain. Five year strategy for asylum and migration’. This paper included changes that had and would be made to the routes of entering the UK as a family member of someone present and settled in the UK. The paper states that British citizens and those settled in the UK should be allowed to be joined by their spouses or fiancé(e)s. Those allowed to settle would also be able to bring immediate family (spouses and children under 18), but others only in exceptional circumstances. The UK would continue to allow people to be joined by parents and grandparents who are over 65 and have no other relatives to support them in their own countries. A rigid quota would cause considerable hardship and was not considered acceptable. The minimum age for leave as a spouse or partner has since been raised to 18, to help address the problem of forced marriages, and following further consideration may be raised again to 21 if necessary. Abuse of marriage as a route to entry and settlement has been dealt with firmly by introducing the Certificate of Approval requirement and only allowing foreign

38

nationals to apply at designated register offices. Individuals have to demonstrate that the marriage has subsisted for two years before permanent status can be granted. The paper published in 2005 (‘Controlling our borders: Making Migration Work for Britain. Five year strategy for asylum and migration’) stated that these tight conditions will be applied rigorously. It also stated that further changes would be made to increase the economic benefit to the UK of permanent settlement, and bring its requirements closer to the rights and obligations of full citizenship. Much more is now required from those who wish to become citizens – they must demonstrate knowledge of English language and of life in the UK. These requirements are related to the factors that are most closely linked to migrants succeeding in the UK and becoming economically active, and are intended to encourage greater social integration. The criteria for settlement will be brought closer to those for citizenship by: • People are required to demonstrate a minimum standard of English language and knowledge of

life in the UK before they are granted settlement rights.

• Ending Chain migration. This involves ending the practice where those who settled in the UK on a family reunification basis can themselves immediately sponsor further family members, consistent with the UK’s ECHR obligations. In future they will not be able to do this until they themselves have been settled for five years or have citizenship here. 43

There are no immediate plans to change policy with reference to family reunification. There are, however, plans to redefine ‘family members’ for the purpose of entering the UK temporarily under the ‘sponsored family visitors’ route. It is not envisaged that this will have any impact on family reunification policy. 3.3 Conclusions regarding family reunification policy and its development The UK opted out of Directive 2003/86/EC on Family Reunification primarily because it is not in line with the UK’s border control policies. Despite this decision, this report has show that overall the UK’s family reunification policy is currently closely in line with many Articles of the Directive. An important aspect of the UK’s family reunification policy is that, regardless of the relationship between sponsor and applicant (be it spouse, fiancé(e), unmarried or same sex partner, or child) the sponsor must be ‘present and settled’ in the UK. Without this crucial element, an application via a ‘family reunification’ route would not be successful. The only exception to this is where the sponsor, following an asylum claim, has been granted five years limited leave as a refugee or five years temporary protection (i.e. Humanitarian Protection or Discretionary Leave). In both these circumstances, where only limited leave has been granted to the sponsor, an application for family reunification will be considered. The criteria outlined for each category of applicant to fulfil aim to reduce the number of fraudulent applications that are made and are successful. They also aim to ensure that genuine applicants who fulfil the necessary criteria have their applications processed effectively and are enabled to exercise their rights to family life. In the UK, much more is now required of applicants for permanent settlement, in order to bring the requirements closer to the rights and obligations of full citizenship. These requirements include a minimum standard of English, Welsh or Scottish Gaelic language, and good knowledge of life in the UK, both of which are tested before settlement can be granted. These requirements are intended to improve the integration experiences of those who are granted settlement. With knowledge of the UK 43 This information has been taken from the Home Office paper ‘Controlling our borders: Making Migrations Work for Britain’, please seen page 21, section 3, points 38-39 to view the full text.



39

and the English language they should find it easier to settle into a new community, find work and become economically active. In addition to the introduction of these requirements to improve integration, there has also been a change in the minimum age for leave as a spouse or partner (both for applicant and sponsor). The age was raised from 16 to 18 in order to help address the problem of forced marriages, and following further consideration may be increased further to 21. It is hoped that by raising the age limit, young people will have the opportunity to complete their education and also develop the confidence to stand up against the pressure of a forced marriage.

40

4. Size and Composition of Family Reunification in the UK The statistical data presented in this section have been provided for the years available. In several cases, data for 2002 and 2003 have not been provided. The merging of two data management systems during this period means that numbers before and after the merge of data sources are not comparable. As a consequence, statistics for 2002 and 2003 have been omitted from the tables concerned to minimise the risk of misleading the reader. With reference specifically to point 4.1 (6) in this statistics section, it has not been possible to provide figures specifically for “immigrants” (those who have been in the UK for 6 months or more), as this information is not available. When presenting the age of dependants who apply for entry clearance (Table 11, page 48), owing to time constraints, it was not possible to provide the age breakdowns requested in the study specification for this data. Instead breakdowns have been provided only for those aged 18 and over and those under 18 years. The dependants’ age groups for the grants of settlement, provided in Table 12, also differ from those requested in the project specification. Smaller, non-overlapping age bands have been provided in order to maximise the value of this information. 4.1 Size regarding Family Reunification 1. Applications for family reunification Entry Clearance Table 1 shows the total number of applications for entry clearance made by family members of sponsors present and settled in the UK. Entry clearance confers leave to enter and ILE from the date of issue and will be activated upon passing through UK immigration control. In 2006, the number of applications for entry clearance through family reunification routes was at its lowest, within the reported three year period. Between 2004 and 2006, the number of applications decreased by 12 per cent from 22,061 to 19,355. Table 1 – Applications for family reunification entry clearance 2004-200644

2004 2005 2006Total number of applications 22,061 20,450 19,355

Applications for Indefinite Leave to Remain (ILR, settlement) Table 2 shows the total number of applications for ILR for family reunification purposes. The proportional increase of almost 50 per cent in 2006 was much greater than the increase in 2005. This probably reflects a change in policy which came into effect on 1st April 2003. This policy changed the period of leave given to some passengers entering the UK as a spouse from 12 months to two years, and for others it was replaced with immediate ILE. This meant that an extra 12 months was added to the probationary period to be completed before some spouses could then apply for settlement (ILR). Hence, the number of applications for ILR went up greatly in 2005 and especially 2006 when a large number of those who entered just after the policy change came into effect would have been eligible to apply and the ILR applications would therefore have been processed by BIA.

44 This information has been provided from local management information and is not part of National Statistics. As such, it should be treated as provisional and therefore subject to change.

41

Table 2 – Applications for family reunification ILR 2004-200645 2004 2005 2006

Total number of applications 36,165 39,340 58,890

2. Decisions made with respect to the filed applications for family reunification Entry Clearance Issued entry clearance applications for family reunification In 2004, 88 per cent (18,290) of all applicants were issued entry clearance (Table 3). In 2005, this proportion decreased to 86 per cent (18,362). This proportion dropped again to 81 per cent (15,773) in 2006. Table 3 – Decisions on dependants applying for family reunification entry clearance 2004-200642

2004 2005 2006Issued 18,290 18,362 15,773Refused 2,450 2,951 3,704

Total decisions 20,740 21,313 19,477 The figures for entry clearance include those applicants granted ILE, who (on arrival) would not need to complete a probationary period in order to apply for ILR. However, the number of persons granted ILE (settlement on arrival) is quite small and hence makes up a relatively small proportion of these statistics. Refused entry clearance applications for family reunification In 2006, 19 per cent (3,704) of entry clearance applications for family reunification were refused. This shows a rise in the number and proportion of refusals compared to 2005 and 2004 when 14 per cent (2,951) and 12 per cent (2,450), respectively, of applications were refused (Table 3). It can be seen that, despite the fact that the number of decisions dropped overall during this period, the number of applications refused increased. Although it has not been possible to attribute this change to a particular change in policy, it is believed that this is likely to be due to a combination of factors including the improvement in DNA testing and a fall in the number of grants of asylum (and therefore a fall in the number of asylum-related applications for family reunion).


42

Settlement Grants In Table 4, it can be seen that, between 2002 and 2006, wives made up the largest single group of applicants for family formation and reunion grants (this also includes female unmarried partners). There was a large drop in the number of husbands and wives granted settlement between 2003 and 2004, reflecting the change to the Immigration Rules in April 2003; however the numbers rise again in 2006 as those who would have completed their two year probationary period would have become eligible to apply for ILR. Table 4 - Grants of settlement by category of grant, excluding EEA and Swiss (1) nationals, (2) 2002-200646

United Kingdom

Number of persons Broad category of grant 2002 2003 2004 2005 2006 (3) (4)(5) (4) (P)(4)

Total employment-related grants(6) 19,800 29,635 42,260 63,015 31,830 Total asylum-related grants (7) (8) 29,940 22,105 52,555 67,810 30,605 Family formation and reunion (9) Husbands (10) 15,520 17,370 8,185 8,710 15,525 Wives (10) 25,120 30,790 12,920 15,585 27,200 Children 6,355 8,950 5,850 6,715 9,290 Parents and grandparents 1,750 3,090 1,985 1,450 1,470 Other and unspecified dependents 4,015 5,000 4,300 4,880 6,325 Total family grants 52,760 65,200 33,240 37,335 59,810 Other grants on a discretionary basis 10,980 16,160 6,715 6,400 7,720 Category unknown (11) 2,490 6,175 4,440 4,565 4,465 All grants of settlement 115,965 139,280 139,210 179,120 134,430

(1) Swiss nationals are excluded from 1 June 2002 - see Annex B. (2) Data from 2003 also exclude dependants of EEA and Swiss nationals in confirmed relationships granted permanent

residence - see Annex B. (3) Excludes reconsideration cases. See Annex B. (4) May include a small number of cases in which a decision is recorded twice, where an individual has dual nationality. (5) Includes nationals of Cyprus, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia

before 1 May 2004, but excludes them from this date. (6) In 2006 the qualifying period for settlement in all employment-related categories changed from 4 to 5 years. See Annex B. (7) Includes grants under the Family ILR exercise, see Explanatory Notes and Definitions, paragraph 20. (8) Excludes reconsideration cases and the outcome of appeals. (9) Spouses and dependants joining British citizens or persons previously granted settlement. (10) Includes civil and unmarried partners. (11) See Annex B. (P) Provisional data included in this column.

46 SOURCE: Control of Immigration: Statistics United Kingdom 2006 (Command Paper), Table 5.4.

43

Refused applications for family reunification Indefinite Leave to Remain Table 5 shows the number of applications for family reunification ILR that were refused between 2004 and 2006. The number increased over this period by 10 per cent from 2,910 to 3,200. However, the number of refusals dropped slightly between 2004 and 2005. This overall increase in refusals reflects the increase in the numbers of applications made for ILR during this period. Table 5 - Number of refused applications for family reunification ILR, 2004 – 200647 Year 2004 2005 2006 Number Of Cases 2,910 2,740 3,200

3. Rejected applications for family reunification after family reunification was explicitly applied for. 4. Issued residence permits for family reunification after family reunification was explicitly applied for. 5. Issued residence permits for family reunification after family reunification was not explicitly asked for (if relevant). The subsections above have been grouped together to avoid duplication and overlap in the information provided. Data provided up to this point include information on the decisions made regarding family reunification including the number of applications refused and the number of grants of settlement and entry clearance issued. Separate specific responses have not been provided for points 3 to 5 as the data available do not specify whether or not family reunification was explicitly applied for. 6. All immigrants granted entry and residence, thus including ‘dependants’ Table 6 shows ‘Passengers given leave to enter the UK by purpose of journey, excluding EEA and Swiss nationals’. This Table shows all passengers granted entry from 2002 to 2006. It is important to note that not all those who were granted entry choose to apply to settle in the UK. For example, Table 6 includes categories of entry, such as visitors and students, who are not admitted into the UK to settle although they may decide to switch category and subsequently settle in the UK. It can be seen that during this period, the numbers of journeys made by passengers admitted as a spouse or fiancé(e) increased year by year. The number of journeys made by children granted leave to enter for a probationary year as dependents of persons settled, and the number of journeys made by passengers granted settlement on arrival, also increased between 2002 and 2006 from 4,380 and 2,470 to 5,780 and 8380, respectively. It was not possible to provide figures specifically for persons coming to the UK for 6 months or more, as this information is not available.

47 This information has been provided from local management information and is not a National Statistic. As such it should be treated as provisional and therefore subject to change.

44

Table 6, Passengers given leave to enter the UK by purpose of journey, excluding EEA and Swiss nationals, (6) 2002 - 200648 United Kingdom Number of journeys

Passengers admitted, by purpose of journey 2002 2003 2004 2005 2006(1) (2)(P)

Visitors 7,850,000 7,550,000 7,220,000 6,890,000 7,450,000 of which:

Ordinary 6,150,000 5,860,000 5,650,000 5,330,000 5,750,000 Business 1,690,000 1,690,000 1,570,000 1,560,000 1,690,000

Students (inc dependants) 385,000 332,000 307,000 297,000 326,000 of which:

Students 369,000 319,000 294,000 284,000 309,000 Dependants 16,200 13,800 13,100 13,200 17,000

Work permit holders (inc deps) (3) 120,000 119,000 124,000 137,000 145,000 of which:

Permit holders 85,600 81,400 82,700 91,500 96,600 Dependants 34,500 37,800 41,500 45,500 48,500

UK ancestry 10,400 9,150 7,700 8,260 8,490

Domestic Workers 10,100 10,600 10,400 10,100 12,500

Ministers of Religion 650 580 640 530 955

Postgraduate doctors or dentists 900 975 415 395 330

Working holidaymakers 41,700 46,500 62,400 56,600 43,700

Seasonal Agricultural Workers 16,900 20,700 15,000 13,000 14,200

Diplomats, consular officers or persons on 17,300 17,000 5,800 8,200 7,740 Foreign and Commonwealth government mission

Au pairs 12,800 15,300 5,640 2,360 1,840

Admitted as a spouse or fiancé(e) (4) 30,300 31,400 35,300 41,600 47,100

Children granted leave to enter for a probationary 4,380 4,160 4,260 4,670 5,780

year as dependants of persons settled (4)

Passengers in transit 1,300,000 1,140,000 1,260,000 1,310,000 1,530,000

People returning after a temporary absence 2,740,000 2,780,000 2,790,000 2,880,000 3,110,000 abroad

Others given leave to enter (5) 61,000 119,000 194,000 186,000 163,000

Granted settlement on arrival (6) 2,470 2,690 4,590 6,090 8,380

Total admitted 12,600,000 12,200,000 12,000,000 11,800,000 12,900,000

(1) Includes nationals of Czech Republic, Cyprus, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia before 1 May, but excludes them from this date.

(2) Due to some gaps in the data from ports, estimates have been used. (3) Figures appear in Table 2.5 to a higher degree of precision. (4) Figures appear in Table 2.6 to a higher degree of precision. (5) Includes dependants, children and others. (6) Excludes asylum-related cases which are included in 'Others given leave to enter'. (P) Provisional figures.

48 SOURCE: Control of Immigration: Statistics United Kingdom 2006 (Command Paper), Table 2.2.

45

Table 4 shows the total the number of people granted settlement49 which means that they are allowed to stay in the UK permanently. This Table shows figures for other categories as well as the family formation and reunion category. The shaded section headed; “Family Formation and Reunion” is broken down by category but also shows the total number of family formation and reunion grants per year from 2002 to 2006. In 2002 and 2003, the total numbers for this category were higher than those for any other category of grants. However in 2004, the proportion of family formation and reunion grants decreased and, by 2005, this category represented 21 per cent of all grants of settlement. In 2006, the proportion of family formation and reunion grants increased once more to 44 per cent of all grants of settlement in that year. (see Figure 1)

Figure 1 - Total Grants of Settlement, by broad category excluding EEA and Swiss nationals, 2002 to 2006

44%

21%24%45%

47%

56%79%

76%

53%

55%

0

20,000

40,000

60,000

80,000

100,000

120,000

140,000

160,000

180,000

200,000

2002 2003 2004* 2005 2006

Year

Num

ber o

f Gra

nts

of S

ettle

men

t

Other grants of settlementFamily related grants**

* Includes nationals of Cyprus, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia before 1 May 2004, but excludes them from this date. ** Spouses and dependants joining British citizens or persons previously granted settlement. The “Family ILR Exercise” was announced by the Home Secretary on 24th October 2003. This exercise allows certain asylum-seeking families who had been in the UK for four or more years to obtain settlement. To qualify, the main applicant of the family unit needed to have applied for asylum before 2nd October 2000 and must have had at least one dependant aged over 18 (other than a spouse) in the UK on 2nd October 2000 and/or 24th October 2003.50 Those granted settlement through the Family ILR Exercise would have been counted within asylum-related grants. It can be seen in Table 4 that, since the launch of this exercise, the number of asylum-related grants has increased and more than doubled between 2003 and 2004, and showed a further marked increase in 2005. This, coupled with the 2003 change in immigration rules, helps explain the decrease in the proportion of family formation and reunion grants in 2004 and 2005.

49 These are persons subject to immigration control who are allowed to remain in the UK indefinitely, excluding EEA nationals and Switzerland. 50 This information has been taken from Control of Immigration Statistics United Kingdom 2005 (Command Paper), page 104, point (xiv). Please see this publication for further details.

46

Table 4 also shows that the total number of employment-related grants has increased year by year between 2002 and 2005. This is likely to be because the UK Government has been encouraging skilled workers to bring their skills to the UK, resulting in more people seeking settlement through this route. The drop reflects a change in the qualifying period for settlement from four years to five years, which took effect 3 April 2006, in all employment related categories. This effects the proportions of family related grants shown in figure one in relation to the other grants of settlement. 4.2 Composition regarding family reunification migration Dependants Nationality Table 7 provides a breakdown of the top ten nationalities of dependants applying for entry clearance via a family reunification route between 2004 and 2006. Nationals of India, Somalia and Pakistan are overall the top three although the USA has been moving up the table and overtook India in 2006. The position of India and Pakistan probably reflects the UK’s ties to its old Commonwealth countries and the significant existing Diasporas in the UK. The high number of applications from Somali nationals is likely to be due to dependants applying to join family members granted asylum in previous years. The political instability in Somalia (particularly since 1991) led to high numbers of asylum applications from Somali nationals. Table 7 –Top 10 countries of nationality of dependants applying for family reunification entry clearance, 2004 – 200651

2004 2005 2006 Country Applications Country Applications Country Applications

India 4,488 India 3,581 Pakistan 2,567Somalia 2,923 Somalia 2,544 Somalia 2,198

Zimbabwe 2,098 Pakistan 2,317 USA 1,484Pakistan 1,531 Zimbabwe 1,416 India 1,373

Iraq 1,012 USA 1,084 Bulgaria 1,129USA 959 Afghanistan 681 Afghanistan 919Turkey 830 Iraq 665 Zimbabwe 864Bulgaria 751 Turkey 500 Romania 819Afghanistan 684 Bulgaria 478 Nigeria 669Romania 487 Romania 430 Nepal 517

For a full breakdown by nationality, please see Table A1 in Annex B.


47

Table 8 provides a breakdown of the top ten nationalities of dependants who applied for ILR via a family reunification route between 2004 and 2006. Similarly to the top countries for entry clearance applications, the top four countries for dependants applying for settlement are Pakistan, Jamaica, Bangladesh and India during the reported period. These are all old Commonwealth countries and most likely reflect the UK’s ties with these countries and the large existing Diasporas in the UK. Table 8 –Top 10 nationalities of dependants applying for family reunification (ILR), 2004 – 200652

2004 2005 2006 Country Applications Country Applications Country Applications

Pakistan 6,570 Pakistan 5,735 Pakistan 10,545Jamaica 2,710 India 4,080 India 5,830Bangladesh 2,685 Bangladesh 2,760 Bangladesh 2,875India 2,610 Jamaica 1,980 Jamaica 2,635Nigeria 1,455 USA 1,860 USA 2,485USA 1,265 Nigeria 1,560 Nigeria 2,155South Africa 1,255 Thailand 1,555 Thailand 1,970Turkey 1,195 South Africa 1,290 Turkey 1,880Ghana 815 Turkey 1,185 South Africa 1,755Zimbabwe 755 Australia 895 Ghana 1,485

For a full breakdown by nationality, please see Table A2 in Annex C. Sex Table 9 shows a breakdown of the sex of applicants for entry clearance between 2004 and 2006. It can be seen that a higher proportion of applications came from female family members. Over this period, on average, 61 per cent of entry clearance family reunion applications came from females. Table 9 – Dependants applying for family reunification entry clearance broken down by sex, 2004 – 200649 2004 2005 2006

Sex Number of UK

Applications

Issued Refused Number of UK

Applications


Applications

Issued Refused

Female 13,298 11,087 1,463 12,574 11,218 1,814 11,743 9,667 2,177Male 8,754 7,196 986 7,863 7,128 1,136 7,607 6,103 1,526Unknown 9 7 1 13 16 1 5 3 1Total 22,061 18,290 2,450 20,450 18,362 2,951 19,355 15,773 3,704


48

Table 10 shows a breakdown of the sex of the applicants for ILR in the UK. Again higher proportions of females than males applied for family reunification ILR between 2004 and 2006. Over this period, on average, 62 per cent of applicants in this category were female. Table 10 – Dependants applying for family reunification ILR broken down by sex, 2004 – 200650

2004 2005 2006 Female 22,150 24,950 36,705Male 14,015 14,390 22,185Total 36,165 39,340 58,890

Relationship to Sponsor (category) Dependants who apply as a spouse (and if possible for ‘partner’ too), child or parent The number of applications for entry clearance made within each endorsement category can be seen in Table 11. Overall, most applicants apply to join a spouse or civil partner or under asylum-related family reunion. However, between 2004 and 2006, the number of persons who applied for entry clearance to join a spouse or civil partner remained stable while there was a decrease in the number of people who applied under asylum-related family reunion. During the same period, there was also a marked increase of 167 per cent in applications for entry clearance to join a partner, resulting in more successful applications in this category. As previously discussed, overall, during this period, the number of entry clearance applications falls each year; from this breakdown it can be seen that this corresponds with the fact that the number of asylum-related family reunion applications also falls each year during this period. In turn, this fall in the number of applications for asylum-related family reunion, corresponds with the fact that the number of grants for asylum issued also falls each year during this period. With fewer grants for asylum being issued, there would be fewer dependents who would be entitled to apply for asylum-related family reunion. Table 11 - Dependants applying for family reunification entry clearance broken down by category, 2004 – 200653

2004 2005 2006 Category Number of

UK Applications


Applications


Applications

Issued Refused

Asylum-related Family Reunion54

9,563 8,109 1,027 7,814 7,734 1,124 5,976 5,284 1,155

To join Parent(s)

5,250 4,434 500 4,971 4,398 545 5,127 4,178 796

To join Partner

616 461 81 1,007 810 99 1,646 1,379 268

To join Spouse/ Civil Partner

6,632 5,286 842 6,658 5,420 1,183 6,606 4,932 1,485

Total 22,061 18,290 2,450 20,450 18,362 2,951 19,355 15,773 3,704

53 This information has been provided from local management information and is not part of National Statistics. As such, it should be treated as provisional and therefore subject to change. 54 Asylum-related applications cannot be broken down further. This category includes asylum-related applications for family reunification; these could be made by a spouse, civil partner, unmarried partner, child or adopted child.

49

Table 12 shows a breakdown of the number of applications for ILR by category. The largest numbers of applications are made by those who apply to settle in the UK as the spouse of a sponsor who is present and settled in the UK. Between 2004 and 2006, there was an increase in the number of applications from those who wanted to settle as either spouses or unmarried partners of sponsors present and settled in the UK. This is most likely due to the changes in legislation in April 2003 which increased the initial period of leave to enter the UK for some spouses and unmarried partners (same and opposite sex) from 12 months to 2 years, as discussed previously (see pages 40 to 41).

Table 12 – Dependants applying for family reunification ILR broken down by category, 2004 – 200653 2004 2005 2006 Children (inc Adopted) 2,670 2,240 2,155Civil Partners - - 25Other Dependants 210 495 875Parents/Grandparents 5,320 4,130 4,105Spouses 27,260 31,220 50,130Unmarried Partners 700 1,260 1,595Total 36,165 39,340 58,890

Age Table 13 provides an age breakdown of dependants who made applications for entry clearance as family members of sponsors ‘present and settled’ in the UK between 2004 and 2006. Age breakdowns are provided for those aged under 18 and 18 and over. In 2006, 49 per cent (9,529) of applicants were aged under 18 and 51 per cent (9,828) were aged 18 and over only. For asylum-related applications for family reunification, the proportion of applications for those aged 18 and over decreased between 2004 and 2006. Table 13 - Dependants applying for family reunification entry clearance broken down by age, 2004 - 200655 56

Age 2004 2005 2006Under 18 11,444 10,308 9,529of which -Asylum-related 5,944 5,177 4,069Non-asylum related 5,500 5,131 5,46018 and over 10,582 10,138 9,828of which - Asylum-related 3,592 2,640 1,918Non-asylum related 6,990 7,498 7,910Total 22,026 20,446 19,357

Number of applications

55 As Table 13 was based on data obtained at a later date in relation to other entry clearance data tables provided, the total figures differ slightly. This is due to the continuous checking and correction of records. 56 This information has been provided from local management information and is not part of National Statistics. As such, it should be treated as provisional and therefore subject to change.

50

Table 14 provides the age breakdown of dependants granted settlement57 for family formation and reunion between 2004 and 2006. It can be seen that the largest number of grants for settlement were issued to those in the 26 to 30 age band. This is likely to be because applicants in this age band are most likely to be spouses, the route through which most persons apply for ILR in the family reunification category. The age bands on either side of this group (21 to 25, and 31 to 35) are also large which is likely to be for the same reason. More generally, the age distribution reflects the principal groups allowed settlement for family reunification: dependent children, spouses/partners and parents aged 65 and over. Table 14 - Grants of settlement for family formation and reunion58 by age, excluding EEA and Swiss nationals, 2004 to 2006 (P) 59

United Kingdom Number of personsAge group(5) 2004 (2) 2005 2006Children under 12 2,730 2,420 3,11012 to 17 1,595 1,525 1,89018 to 20 1,590 1,225 1,78021 to 25 5,340 5,575 10,08526 to 30 6,210 8,065 13,96031 to 35 4,000 5,405 8,86536 to 40 2,215 2,665 4,33541 to 45 1,305 1,510 2,66546 to 50 835 780 1,56051 to 55 430 450 98056 to 60 300 270 63061 to 64 305 230 38565 and over 1,545 1,035 1,145Age unknown 4,845 6,175 8,430Total 33,240 37,335 59,810

(2) Includes nationals of Czech Republic, Cyprus, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia

before 1 May, but excludes them from this date. (5) Age as at date of decision (P) Provisional figures.

Sponsors Comprehensive information on sponsors is not routinely collated and, because of time constraints and the way in which the data are held, it was not possible to obtain the information requested. 4.3 Conclusions regarding family reunification size and composition and their development As a proportion of all grants of settlement, family formation and reunion peaked in 2003 when it made up 47 per cent of the total numbers of grants, after which it dropped to 21 per cent in 2005. This drop can be explained by the change in rules in 2003 (regarding the probationary period for spouses) and the Family ILR exercise. Between 2004 and 2006, within the family reunification category, the majority of dependants who applied for ILR (average 61%) or entry clearance (average 62%) were female. Consistently, between 2002 and 2006, the highest numbers of grants of settlement in the family formation and reunion category, were issued to wives of sponsors. Looking at the nationalities of dependants, in 2006 the largest numbers of family reunification applications for ILR and entry clearance came from

57 Please note that these age breakdowns are for those granted settlement rather than for applications for ILR for family reunification purposes. 58 Spouses and dependants joining British citizens or persons previously granted settlement. 59 This information has been provided from local management information and is not part of National Statistics. As such, it should be treated as provisional and therefore subject to change.

51

Pakistani, Jamaican and Bangladeshi nationals. This is likely to be due to the UK’s ties with these former Commonwealth countries and the sizable diasporas in the UK. The majority of applications for entry clearance from 2004 to 2006 were to join a spouse/civil partner, or under asylum-related family reunion. The highest numbers of dependants applying for ILR were spouses. During 2004 and 2005 the majority of applications for entry clearance were made by dependants under the age of 18. However, in 2006 the majority of applications were made by dependants who were 18 or over. For asylum-related applications for entry clearance for the purpose of family reunification, there was proportionally a larger decrease in the number of applications from those aged 18 or over between 2004 and 2006. In contrast, for non-asylum related applications, the number of applications stayed largely stable for those ages under 18 and those aged 18 and over between 2004 and 2006. From 2004 to 2006, 26 to 30 year olds were the largest age group of dependants within the family formation and reunion category to be granted settlement, reflecting the primary purpose of family reunification, to join a spouse/civil partner.

52

5. Any other relevant aspects Switching The "no switching" into marriage provision prevents those given limited leave to enter the UK for six months or less, e.g. visitors and short term students, from switching into the marriage category. It does not apply to those given leave to enter the UK for six months as a fiancé(e). Neither does it apply to those who have been granted an extension of stay in the UK of six months or less at the end of their initial period of leave. On 1 October 2004, Command Paper 6339 introduced a requirement preventing switching into the marriage category by persons who only have leave granted outside the Immigration Rules. Grants of discretionary leave are outside the Immigration Rules. Therefore those persons granted Discretionary Leave who applied on or after 1 October 2004 on the basis of a marriage, or the establishment of a partnership with someone present and settled in the UK, could not seek to switch into leave to remain on the basis of that relationship. Provided the relationship continues to exist they can seek to remain in the UK until they have completed 6 years’ Discretionary Leave (in 2 periods of 3 years’ stay) and then apply for ILR. Or, at a time of their choosing, they can leave the UK and apply for entry clearance from abroad for the purpose of family reunification.60 Raising the age of sponsoring overseas marriage visa In 2006 the Home Secretary asked officials in the Home Office and the Foreign & Commonwealth Office to look at ways of addressing the issue of forced marriages, which can lead to violence (and to violence against women in particular). One of the options was to raise the age at which someone can sponsor an applicant to come to the UK. It is important to be clear that forced marriage and arranged marriage are not the same thing. An arranged marriage involves the consent of both parties. In a forced marriage that consent is missing. The UK Government is determined to tackle the issue of forced marriage and to take all appropriate measures to prevent people undergoing this serious human rights abuse. Identity Management Changes are being introduced by BIA, with the intention of creating a stronger UK border. These changes are aimed at providing a robust defence against many existing patterns of immigration abuse as well as playing an important role in national security and the fight against criminality from overseas; they are not aimed specifically at family reunion. Nevertheless they are likely to have an impact on family reunification routes into the UK in a number of ways. In order to improve border security the UK has introduced improved identity management reducing the scope for abuse. For the purposes of identity management the most reliable identifiers are biometrics. The UK will exploit the global roll-out of biometric systems to enhance identity management processes at the border, using all types of biometric capture and verification of biometric passports, ID cards and visas. BIA will start to issue biometric immigration documents and complete roll-out of biometric visas by 2008. By summer 2007, frontline staff at all major ports will be able to read the biometric information in all e-enabled passports and ID cards and compare it to the biometrics of passengers presenting those documents. Fixing individuals to their identities and checking against biometric databases is vital. Through the visa system, fingerprints and facial biometrics for individuals from over 60 countries are being captured before they travel to the UK. Biometrics on all visa applications will be rolled out by the

60 This information has been taken from section one of the Immigration Rules. Please see point 3.1 for full text.



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end of 2008. This gives ECOs significant additional information on which to base decisions. By March 2007 over 280,000 applicants had provided biometrics; over 2,700 of these had matched fingerprints taken in the UK in connection with previous immigration matters or asylum applications.61 The faster processing of applications made by those passengers seeking to join family members present and settled in the UK is one possible outcome arising from these changes. Checking of people’s identities will be faster and easier and will help to identify fraudulent applications and prevent people from reapplying under various identities. Although the current level of abuse of family reunification routes of entry is unclear, these changes will minimise any possible abuse through these routes in the future. In addition to the improvements to identity management through the use of biometrics, in 2006 the UK began to check more departing passengers. Under Project Semaphore, data on passengers’ departures is being processed, enabling targeted interventions using mobile teams where appropriate. Fully staffed embarkation controls can be established very quickly at a chosen location, in response to specific threats and these are currently operated on a risk-assessed basis at major ports. The majority of passenger will be checked in and out of the UK by 2009. This will build a complete picture of movements in and out of the UK and enable BIA to have an accurate record of those who overstay their visa. This change may also have an impact on family reunification routes of entry. The information captured will help to determine whether those who have been granted leave to enter to join a family member overstay their probationary period without applying for an extension of leave to remain, or ILR. This may occur, for example, where the relationship breaks down and the applicant no longer fulfils the requirements to gain ILR once the initial two-year or six-month probationary period (depending on the relationship) has ended. This information will help to identify the prevalence of this kind of abuse and ensure that those staying illegally in the UK can be identified and removed. 6. Conclusions As the UK has opted out of Directive 2003/86/EC on Family Reunification, it has not been possible to say specifically how the Directive has been incorporated into the UK’s policies and operations. However, it has been shown that the UK’s family reunification policies are generally in line with the Directive. The statistics provide a picture of the number of applications made for family reunification in the UK, and how many are successful. The information provided also gives a clearer picture of the make-up of applicants with regard to their nationality, age, gender and their relationship with their sponsor. There were, however, limitations with regard to the statistics such as the availability of data, and quality issues over data that are not in normal operational use. Other limitations affecting this report included time restraints, including limited time available to carry out a comprehensive literature review. A literature search was conducted in order to find further information with regard to family reunification in the UK, and particularly the effects of chain migration, but little arose from this search that related specifically to the UK.

61 “Securing the UK Border, Our Vision and Strategy for the Future”, Home Office March 2007, page 8, point 3.2.

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Annex A

Countries and Territories Specified in the Adoption (Designation of Overseas Adoptions) Order, 1973 Commonwealth Countries and Territories Anguilla Australia Bahamas Barbados Belize Bermuda Botswana British Virgin Islands Canada Cayman Islands Cyprus (whole Island) Dominica Fiji Ghana Gibraltar Guyana Hong Kong Jamaica Kenya Lesotho Malawi Malaysia

Malta Mauritius Montserrat Namibia (previously known as South West Africa) New Zealand Nigeria Pitcairn Island St Christopher and Nevis St Vincent Seychelles Singapore South Africa Sri Lanka Swaziland Tanzania Tonga Trinidad and Tobago Uganda Zambia Zimbabwe (previously known as Rhodesia)

Other Countries and Territories Austria Belgium China (but only when the child was adopted on or after 5 April 1993 and will be living in England or Wales, or on or after 10 July 1995 and will be living in Scotland, or on or after 19 February 1996 and will be living in Northern Ireland). Denmark (including Greenland & the Faeroes) Finland France (including Reunion, Martinique, Guadelope, & French Guyana) Germany Greece Iceland Israel

Italy Luxembourg The Netherlands (including the Antilles) Norway Portugal (including the Azores & Madeira) Republic of Ireland Spain (including the Balearics & Canary Islands) Surinam Sweden Switzerland Turkey United States of America Yugoslavia (but none of the states that made up former Yugoslavia)

Please note that the Designated List is currently being reviewed by the Department for Children, Schools and Families under the provisions of the Adoption and Children Act 2002.

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List of Countries that have ratified or Acceded to the Hague Convention on Adoption. As of 10th January 2006 the countries listed in the two tables below had ratified or acceded to the Hague Convention on Adoption. Note that the UK will not recognise all Adoptions, be they domestic or inter-country, made in these contracting States. Only Adoptions made and Certified between two contracting States under the terms of The Hague Convention will be recognised as legally valid. Please note that the lists below are simply an initial guide and subject to change as additional countries sign up and ratify or accede to the Convention or there are other changes. Visit The Hague Convention website62 to obtain the most up to date list. When looking at the lists on the Hague website, the most important column to note is that showing Entry into Force. If there is no date in this column, the country will not be eligible to make Adoption Orders under the terms of the Convention. At the time of writing, the Republic of Ireland, the Russian Federation and the United States of America are on the list but have not yet brought the Convention into force and so cannot make Hague Convention Adoption Orders. The Convention Entered Into Force on 1 May 1995.

62 Please see The Hague Convention website for an up to date list.

http://hcch.e-vision.nl/index_en.php?act=conventions.status&cid=69%20http://www.hcch.net/e/status/adoshte.html

http://hcch.e-vision.nl/index_en.php?act=conventions.status&cid=69%20http://www.hcch.net/e/status/adoshte.html

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States that have ratified the Convention Ratification Date Entry into force Mexico 14 September 1994 1 May 1995 Romania 28 December 1994 1 May 1995 Sri Lanka 23 January 1995 1 May 1995 Cyprus 20 February 1995 1 June 1995 Poland 12 June 1995 1 October 1995 Spain 11 July 1995 1 November 1995 Ecuador 7 September 1995 1 January 1996 Peru 14 September 1995 1 January 1996 Costa Rica 30 October 1995 1 February 1996 Burkina Faso 11 January 1996 1 May 1996 Philippines 2 July 1996 1 November 1996 Canada 19 December 1996 1 April 1997 Venezuela 10 January 1997 1 May 1997 Finland 27 March 1997 1 July 1997 Sweden 28 May 1997 1 September 1997 Denmark 2 July 1997 1 November 1997 Norway 25 September 1997 1 January 1998 Netherlands 26 June 1998 1 October 1998 France 30 June 1998 1 October 1998 Colombia 13 July 1998 1 November 1998 Australia 25 August 1998 1 December 1998 El Salvador 17 November 1998 1 March 1999 Israel 3 February 1999 1 June 1999 Brazil 10 March 1999 1 July 1999 Austria 19 May 1999 1 September 1999 Chile 13 July 1999 1 November 1999 Panama 29 September 1999 1 January 2000 Italy 18 January 2000 1 May 2000 Czech Republic 11 February 2000 1 June 2000 Albania 12 September 2000 1 January 2001 Slovakia 6 June 2001 1 October 2001 Germany 22 November 2001 1 March 2002 Slovenia 24 January 2002 1 May 2002 Bolivia 12 March 2002 1 July 2002 Bulgaria 15 May 2002 1 September 2002 Luxembourg 5 July 2002 1 November 2002 Latvia 9 August 2002 1 December 2002 Switzerland 24 September 2002 1 January 2003 United Kingdom (extension to the Isle of Man)

27 February 2003 (1 July 2003)

1 June 2003 (1 November 2003)

India 6 June 2003 1 October 2003 Belarus 17 July 2003 1 November 2003 Belgium 26 May 2005 1 November 2005 China, People’s Republic of

16 September 2005 1 January 2006

Hungary 6 April 2005 1 August 2005 Portugal 19 March 2004 1 July 2004 Turkey 27 May 2004 1 September 2004 Uruguay 3 December 2003 1 April 2004 Madagascar 12 May 2004 1 September 2004 Thailand 29 April 2004 1 August 2004

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States that have acceded to the Convention Accession: Entry into force Expiry date under

Article 44(3)* Andorra 3 January 1997 1 May 1997 1 August 1997 Moldova 10 April 1998 1 August 1998 1 November 1998 Lithuania 29 April 1998 1 August 1998 1 December 1998 Paraguay 13 May 1998 1 September 1998 1 December 1998 New Zealand 18 September 1998 1 January 1999 15 April 1999 Mauritius 28 September 1998 1 January 1999 15 May 1999 Burundi 15 October 1998 1 February 1999 15 May 1999 Georgia 9 April 1999 1 August 1999 1 November 1999 Monaco 29 June 1999 1 October 1999 15 January 2000 Iceland 17 January 2000 1 May 2000 15 August 2000 Mongolia 25 April 2000 1 August 2000 30 November 2000 Estonia 22 February 2002 1 June 2002 1 October 2002 Guatemala(1) 26 November 2002 1 March 2003 31 July 2003 South Africa 21 August 2003 1 December 2003 Malta 13 October 2004 1 February 2005 Azerbaijan 22 June 2004 1 October 2004 Guinea 21 October 2003 1 February 2004 San Marino 6 October 2004 1 February 2005

* In accordance with Article 44(3) of the Convention, the accession has effect only as regards the relations between the acceding State and those Contracting States which have not raised an objection to its accession in the six months following the date on which the depositary gave notice of the accession. The date specified here is the expiry date of that six-month period. (1) By Note dated 18 July 2003, the Federal Republic of Germany raised an objection to the accession of Guatemala under Article 44(3) of the Convention; however, Germany reserves the right to withdraw the objection. By a letter dated 18 July 2003, the Netherlands raised an objection to the accession of Guatemala under Article 44(3) of the Convention. By Note dated 23 July 2003, Canada raised an objection to the accession of Guatemala under Article 44(3) of the Convention. By Note dated 23 July 2003, Spain raised an objection to the accession of Guatemala under Article 44(3) of the Convention. By Note dated 23 July 2003, the UK raised an objection to the accession of Guatemala under Article 44(3) of the Convention. The effect of the above objections is that Guatemala is treated as a non-Convention country as far as the UK is concerned and the Central Authorities in the UK will not enter into individual Adoption Arrangements with Guatemala. On Tuesday 22 June 2004 , the then UK Minister for Children, Margaret Hodge, announced that the UK had introduced a temporary suspension of adoptions of Cambodian children by all UK residents. The temporary suspension was introduced in response to concerns raised by officials from the then Department for Education and Skills, who visited Cambodia to investigate concerns raised by the British Embassy in Cambodia and, separately, by other stakeholders about the intercountry adoption process in Cambodia. The suspension remains in force until further notice.

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Annex B Control of Immigration: Statistics United Kingdom 2006 Table 4, footnotes. (1) This publication does not include figures for citizens of the Republic of Ireland, who are generally able to travel freely within the Common Travel Area. Other EEA nationals are also entitled to free movement and do not require leave to enter or remain in the UK. EEA nationals are therefore not included in the statistics in this publication on: admissions with limited leave; extensions of stay; or settlement on arrival. Data on EEA nationals granted settlement was not recorded between 1999 and 2000. An agreement between the Member States of the EEA and Switzerland came into force in the UK on 1 June 2002. This agreement confers on Swiss nationals the same rights as those enjoyed by EEA nationals and their family members. Data on admissions of Swiss nationals in this publication are included for arrivals up to 31 May 2002. (2) The 2000 European Economic Area Regulations were replaced on the 30 April 2006 by the Immigration (European Economic Area) Regulations 2006. This transposes the 2004/38/EC/Directive into UK legislation. Under the 2006 Regulations, EEA nationals (and their family members) have the right to reside in the UK for 3 months, by virtue of their nationality. To have a right to reside beyond that period they must be exercising a treaty right, described in domestic regulations as being a qualified person. To be considered a qualified person, they must be a worker, self-employed person, self-sufficient or a student. After residing in the UK for a period of five years according to the EEA Regulations, an EEA national or their family member will acquire the right of permanent residence in the UK. Nationals from the ‘A8’ Accession States (Poland, Latvia, Lithuania, Estonia, Hungary, Czech Republic, Slovakia, and Slovenia) who joined the European Union (EU) in 2004 are required to register as workers under the terms of the Worker Registration Scheme and obtain full movement rights as workers on completion of twelve months continuous employment. Following 12 months lawful employment they become entitled to seek EEA documentation on basis of that employment. A8 nationals are entitled, from date of entry, to seek documentation confirming status if exercising any other treaty right (Self employment, Self sufficiency or Student). This period of data does not include Bulgarian and Romanian nationals exercising a treaty right. Bulgaria and Romania joined the EU on 1 January 2007. (3) A reconsideration case refers to an asylum decision by the Secretary of State which is later required to be reconsidered as a result of additional information and/or significant changes in current circumstances and country information. (6) HC 1016 introduced a requirement for those seeking settlement in the employment related categories to have spent a minimum of five years in the United Kingdom in this category whereas previously this was four years. (11) Data quality - During the first half of 2002, a new integrated database was implemented by the Immigration and Nationality Directorate (IND) (the Border and Immigration Agency (BIA) from 1 April 2007) to record case information including grants of leave to remain and settlement. This database will in time enable the generation of high quality information, but in the meantime there remain some data quality issues which have affected some of the statistics in this publication. The most significant of the data quality issues concern grants of extensions of leave to remain and grants of settlement. There are 2,675 cases of grants of leave to remain (excluding dependants) and 4,465 cases of grants of settlement in 2006 for which the category of extension or settlement is unknown. These cases have been recorded as ‘category unknown’ in Table 4 of this report (table 5.4

59

of the Command Paper). There is no reason to believe that any of these cases fall disproportionately into any of the individual extension or settlement categories.

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Annex C Table A1, Statistics Relating to Entry Clearance applications for Family Reunification for Calendar years 2004 to 2006 - Breakdown by Nationality

2004 2005 2006

Nationality Number of UK Applications Issued Refused Number of UK

Applications Issued Refused Number of UK Applications Issued Refused

Iceland 0 0 0 1 1 0 0 0 0Total EEA 0 0 0 1 1 0 0 0 0Croatia 9 9 0 10 7 0 13 13 1Cyprus 2 0 0 0 2 0 0 0 0Czech Republic 2 2 0 0 0 0 0 0 0Estonia 1 1 0 0 0 0 0 0 0Hungary 2 1 0 0 0 0 0 0 0Latvia 10 10 0 0 0 0 0 0 0Lithuania 166 165 0 0 0 0 0 0 0Malta 1 1 0 0 0 0 0 0 0Poland 181 180 0 0 0 0 1 1 0Slovakia 3 3 0 0 0 0 0 0 0Total A10 377 372 0 10 9 0 14 14 1Albania 85 50 9 107 77 20 57 76 1Bulgaria 751 649 149 478 454 129 1,129 1,110 53Romania 487 434 56 430 365 64 819 685 138Russia 80 69 10 86 76 5 62 57 6Yugoslavia 37 35 5 27 25 3 23 21 4Turkey 830 494 72 500 444 97 350 439 71Ukraine 79 78 5 57 54 1 72 64 6Former USSR 103 83 4 81 85 5 83 66 17Former Yugoslavia 8 2 0 5 9 0 3 4 0Total Other Europe 2,460 1,894 310 1,771 1,589 324 2,598 2,522 296Total Europe 2,837 2,266 310 1,782 1,599 324 2,612 2,536 297

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Table A1 continued

2004 2005 2006 Nationality Number of UK

Applications Issued Refused Number of UK


Applications Issued Refused

Argentina 30 27 2 32 33 1 53 51 1Barbados 5 3 2 3 2 0 14 7 7Brazil 39 38 3 71 45 6 151 136 27Canada 94 84 2 174 169 8 140 119 15Chile 18 18 0 27 27 0 9 9 0Colombia 67 62 14 65 52 8 49 41 13Guyana 63 56 0 218 217 6 135 125 12Jamaica 156 108 52 98 50 32 97 43 56Mexico 43 42 0 18 18 0 28 27 0Peru 5 5 0 5 4 0 7 7 0Trinidad and Tobago 17 17 0 19 17 0 23 20 1United States 959 905 21 1,084 1,042 34 1,484 1,373 49Venezuela 4 4 0 6 6 0 26 20 3Other Americas 103 96 8 71 62 7 97 81 13Total Americas 1,603 1,465 104 1,891 1,744 102 2,313 2,059 197

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Table A1 continued





Algeria 22 16 1 13 10 0 11 8 4Angola 23 7 1 19 17 2 32 28 8Democratic Republic of Congo 426 328 65 385 431 52 413 334 22Egypt 72 68 2 72 71 0 46 47 3Ethiopia 113 80 4 89 121 4 100 63 14Ghana 75 11 59 251 72 143 312 151 150Kenya 189 129 55 65 27 29 63 59 22Libya 3 3 0 5 4 1 17 15 0Mauritius 128 119 10 201 198 5 79 73 5Morocco 13 10 3 36 21 3 9 17 1Nigeria 176 88 61 128 66 21 669 169 443Sierra Leone 49 22 22 65 49 15 59 34 15Somalia 2,923 2,055 334 2,544 2,868 362 2,198 1,471 572South Africa 212 203 13 261 244 14 452 329 105Sudan 124 90 13 194 150 1 230 235 19Tanzania 34 24 4 15 14 2 13 13 2Tunisia 5 5 0 3 3 0 10 7 1Uganda 170 116 19 185 150 36 127 130 54Zambia 27 26 2 7 4 1 12 9 4Zimbabwe 2,098 2,427 260 1,416 1,308 239 864 812 208Other Africa 573 410 104 611 441 82 734 574 154Total Africa 7,455 6,237 1,032 6,565 6,269 1,012 6,450 4,578 1,806

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Table A1 continued





Bangladesh 182 61 75 250 113 168 107 43 63India 4,488 3,634 547 3,581 3,109 428 1,373 1,168 232Pakistan 1,531 1,213 66 2,317 2,073 311 2,567 1,976 666Total Indian Sub Continent 6,201 4,908 688 6,148 5,295 907 4,047 3,187 961Iran 265 246 8 273 264 8 197 190 19Iraq 1,012 938 58 665 387 245 283 258 53Israel 22 22 0 21 20 1 17 17 0Jordan 9 15 1 18 7 1 19 21 7Kuwait 66 64 0 46 46 0 68 68 0Lebanon 15 15 0 8 8 0 9 6 0Saudi Arabia 74 77 0 375 376 0 36 35 0Syria 31 28 1 42 46 0 30 29 0Yemen 31 5 3 18 27 5 32 25 3Other Middle East 127 125 2 73 73 0 22 20 0Total Middle East 1,652 1,535 73 1,539 1,254 260 713 669 82

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Table A1 continued





Afghanistan 684 588 83 681 731 83 919 734 100China 166 143 13 336 193 90 392 267 97Hong Kong 1 1 3 4 2 2 13 13 0Indonesia 41 40 3 17 16 0 17 14 4Japan 92 88 5 85 87 1 81 76 3Malaysia 33 17 1 48 38 9 157 118 19Nepal 200 187 3 279 277 0 517 514 9Philippines 131 100 35 144 104 29 205 142 38Singapore 5 4 0 11 10 0 22 22 0South Korea 34 33 0 21 18 2 26 21 3Sri Lanka 463 301 67 332 263 102 130 151 22Thailand 37 23 9 40 29 3 95 83 18Other Asia 56 43 8 84 69 10 78 53 24Total Remainder of Asia 1,943 1,568 230 2,082 1,837 331 2,652 2,208 337Total Asia 9,796 8,011 991 9,769 8,386 1,498 7,412 6,064 1,380

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Table A1 continued





Australia 118 103 1 145 128 2 205 197 0

New Zealand 59 45 5 81 64 2 98 99 1Other Oceania 149 136 4 117 115 3 100 83 10

Total Oceania 326 284 10 343 307 7 403 379 11





British Overseas Citizens 6 5 0 3 3 0 39 35 3

Nationality Unknown 38 22 3 97 54 8 126 122 10

2004 2005 2006

Nationality Number of UK Applications

Issued Refused Number of UK Applications

Issued Refused Number of UK Applications

Issued Refused

Grand Total 22,061 18,290 2,450 20,450 18,362 2,951 19,355 15,773 3,704

This information has been provided from local management information and is not part of National Statistics. As such, it should be treated as provisional and therefore subject to change.

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Annex D Table A2 Breakdown by nationality of applicants for family reunification ILR63

Country 2004 2005 2006Austria † – –Belgium – – –Finland – † –France 5 5 –Germany † – –Greece † – †Ireland † † †Italy † – †Netherlands † – †Norway – – –Portugal † † –Sweden – – –Switzerland † † –Total EEA 15 10 5Croatia 80 85 95Cyprus (excluding Turkish Republic of North Cyprus) 30 5 5Czech Republic 135 20 5Estonia 20 5 †Hungary 100 10 10Latvia 40 20 10Lithuania 105 20 15Malta 20 † †Poland 345 55 30Slovakia 135 25 10Slovenia 10 † –Total A10 1,025 255 190Albania 340 505 1,075Bulgaria 130 175 290Romania 175 285 375Russia 430 610 835Serbia and Montenegro 300 385 530Turkey 1,195 1,185 1,880Ukraine 245 425 535Former USSR 200 280 405Former Yugoslavia 130 140 165Other Europe 65 25 35Total Remainder of Europe 3,210 4,015 6,130Total Europe 4,250 4,280 6,325Argentina 45 80 85Barbados 50 70 100Brazil 355 455 705Canada 425 460 695Chile 45 35 70Colombia 210 245 410Guyana 100 85 115Jamaica 2,710 1,980 2,635Mexico 65 95 170Peru 50 90 155Trinidad and Tobago 180 155 225United States of America 1,265 1,860 2,485Venezuela 45 70 115Other Americas 465 470 685Total Americas 6,010 6,160 8,650

63 The symbol † used in this table means that the number is negligible (i.e. two or less).

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Table A2 continued

This information has been provided from local management information and is not part of National Statistics. As such, it should be treated as provisional and therefore subject to change.

Country 2004 2005 2006Algeria 230 330 510Angola 30 35 25Congo Democratic Republic 105 75 90Egypt 145 160 295Ethiopia 85 95 120Ghana 815 825 1,485Kenya 395 430 705Libya (Arab Republic) 85 40 90Mauritius 175 225 340Morocco 240 315 360Nigeria 1,455 1,560 2,155Sierra Leone 265 220 280Somalia 290 265 485South Africa 1,255 1,290 1,755Sudan 75 85 160Tanzania 135 180 245Tunisia 70 115 220Uganda 200 170 275Zambia 75 80 160Zimbabwe 755 615 780Other Africa 600 685 1,020Total Africa 7,485 7,805 11,560Bangladesh 2,685 2,760 2,875India 2,610 4,080 5,830Pakistan 6,570 5,735 10,545Indian Sub-continent 11,860 12,570 19,250Iran 310 285 460Iraq 210 270 600Israel 120 145 210Jordan 60 75 110Kuwait 5 5 †Lebanon 105 115 170Saudi Arabia 10 5 15Syria 70 105 120Yemen 135 140 215Other Middle East 40 30 55Total Middle East 1,070 1,180 1,955Afghanistan 140 200 490China 705 920 1,455Hong Kong 220 220 405Indonesia 70 125 160Japan 285 470 615Malaysia 295 350 445Nepal 70 155 570Philippines 630 780 1,175Singapore 80 70 95Korea (South) 85 115 165Sri Lanka 745 710 1,410Thailand 725 1,555 1,970Other Asia 165 210 270Total Remainder of Asia 5,145 7,015 11,090Total Asia and Middle East 18,075 20,765 32,300Australia 745 895 1,205New Zealand 410 480 575Other Oceania 40 20 40Total Oceania 1,190 1,400 1,820British Overseas Citizens 30 25 25Nationality Unknown 55 55 70

Total 36,165 39,340 58,890

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Annex E

Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification Official Journal L 251 , 03/10/2003 P. 0012 - 0018

THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing the European Community, and in particular Article 63(3)(a) thereof, Having regard to the proposal from the Commission(1), Having regard to the opinion of the European Parliament(2), Having regard to the opinion of the European Economic and Social Committee(3), Having regard to the opinion of the Committee of the Regions(4), Whereas: (1) With a view to the progressive establishment of an area of freedom, security and justice, the Treaty establishing the European Community provides both for the adoption of measures aimed at ensuring the free movement of persons, in conjunction with flanking measures relating to external border controls, asylum and immigration, and for the adoption of measures relating to asylum, immigration and safeguarding the rights of third country nationals. (2) Measures concerning family reunification should be adopted in conformity with the obligation to protect the family and respect family life enshrined in many instruments of international law. This Directive respects the fundamental rights and observes the principles recognised in particular in Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and in the Charter of Fundamental Rights of the European Union. (3) The European Council, at its special meeting in Tampere on 15 and 16 October 1999, acknowledged the need for harmonisation of national legislation on the conditions for admission and residence of third country nationals. In this context, it has in particular stated that the European Union should ensure fair treatment of third country nationals residing lawfully on the territory of the Member States and that a more vigorous integration policy should aim at granting them rights and obligations comparable to those of citizens of the European Union. The European Council accordingly asked the Council rapidly to adopt the legal instruments on the basis of Commission proposals. The need for achieving the objectives defined at Tampere have been reaffirmed by the Laeken European Council on 14 and 15 December 2001. (4) Family reunification is a necessary way of making family life possible. It helps to create sociocultural stability facilitating the integration of third country nationals in the Member State, which also serves to promote economic and social cohesion, a fundamental Community objective stated in the Treaty. (5) Member States should give effect to the provisions of this Directive without discrimination on the basis of sex, race, colour, ethnic or social origin, genetic characteristics, language, religion or beliefs, political or other opinions, membership of a national minority, fortune, birth, disabilities, age or sexual orientation. (6) To protect the family and establish or preserve family life, the material conditions for exercising the right to family reunification should be determined on the basis of common criteria. (7) Member States should be able to apply this Directive also when the family enters together.

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(8) Special attention should be paid to the situation of refugees on account of the reasons which obliged them to flee their country and prevent them from leading a normal family life there. More favourable conditions should therefore be laid down for the exercise of their right to family reunification. (9) Family reunification should apply in any case to members of the nuclear family, that is to say the spouse and the minor children. (10) It is for the Member States to decide whether they wish to authorise family reunification for relatives in the direct ascending line, adult unmarried children, unmarried or registered partners as well as, in the event of a polygamous marriage, minor children of a further spouse and the sponsor. Where a Member State authorises family reunification of these persons, this is without prejudice of the possibility, for Member States which do not recognise the existence of family ties in the cases covered by this provision, of not granting to the said persons the treatment of family members with regard to the right to reside in another Member State, as defined by the relevant EC legislation. (11) The right to family reunification should be exercised in proper compliance with the values and principles recognised by the Member States, in particular with respect to the rights of women and of children; such compliance justifies the possible taking of restrictive measures against applications for family reunification of polygamous households. (12) The possibility of limiting the right to family reunification of children over the age of 12, whose primary residence is not with the sponsor, is intended to reflect the children's capacity for integration at early ages and shall ensure that they acquire the necessary education and language skills in school. (13) A set of rules governing the procedure for examination of applications for family reunification and for entry and residence of family members should be laid down. Those procedures should be effective and manageable, taking account of the normal workload of the Member States' administrations, as well as transparent and fair, in order to offer appropriate legal certainty to those concerned. (14) Family reunification may be refused on duly justified grounds. In particular, the person who wishes to be granted family reunification should not constitute a threat to public policy or public security. The notion of public policy may cover a conviction for committing a serious crime. In this context it has to be noted that the notion of public policy and public security covers also cases in which a third country national belongs to an association which supports terrorism, supports such an association or has extremist aspirations. (15) The integration of family members should be promoted. For that purpose, they should be granted a status independent of that of the sponsor, in particular in cases of breakup of marriages and partnerships, and access to education, employment and vocational training on the same terms as the person with whom they are reunited, under the relevant conditions. (16) Since the objectives of the proposed action, namely the establishment of a right to family reunification for third country nationals to be exercised in accordance with common rules, cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale and effects of the action, be better achieved by the Community, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives. (17) In accordance with Articles 1 and 2 of the Protocol on the position of the UK and Ireland, annexed to the Treaty on European Union and to the Treaty establishing the European Community and without prejudice to Article 4 of the said Protocol these Member States are not participating in the adoption of this Directive and are not bound by or subject to its application.

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(18) In accordance with Article 1 and 2 of the Protocol on the position of Denmark, annexed to the Treaty on European Union and the Treaty establishing the European Community, Denmark does not take part in the adoption of this Directive, and is not bound by it or subject to its application, HAS ADOPTED THIS DIRECTIVE: CHAPTER I General provisions Article 1 The purpose of this Directive is to determine the conditions for the exercise of the right to family reunification by third country nationals residing lawfully in the territory of the Member States. Article 2 For the purposes of this Directive: (a) "third country national" means any person who is not a citizen of the Union within the meaning of Article 17(1) of the Treaty; (b) "refugee" means any third country national or stateless person enjoying refugee status within the meaning of the Geneva Convention relating to the status of refugees of 28 July 1951, as amended by the Protocol signed in New York on 31 January 1967; (c) "sponsor" means a third country national residing lawfully in a Member State and applying or whose family members apply for family reunification to be joined with him/her; (d) "family reunification" means the entry into and residence in a Member State by family members of a third country national residing lawfully in that Member State in order to preserve the family unit, whether the family relationship arose before or after the resident's entry; (e) "residence permit" means any authorisation issued by the authorities of a Member State allowing a third country national to stay legally in its territory, in accordance with the provisions of Article 1(2)(a) of Council Regulation (EC) No 1030/2002 of 13 June 2002 laying down a uniform format for residence permits for third country nationals(5); (f) "unaccompanied minor" means third country nationals or stateless persons below the age of eighteen, who arrive on the territory of the Member States unaccompanied by an adult responsible by law or custom, and for as long as they are not effectively taken into the care of such a person, or minors who are left unaccompanied after they entered the territory of the Member States. Article 3 1. This Directive shall apply where the sponsor is holding a residence permit issued by a Member State for a period of validity of one year or more who has reasonable prospects of obtaining the right of permanent residence, if the members of his or her family are third country nationals of whatever status. 2. This Directive shall not apply where the sponsor is: (a) applying for recognition of refugee status whose application has not yet given rise to a final decision; (b) authorised to reside in a Member State on the basis of temporary protection or applying for authorisation to reside on that basis and awaiting a decision on his status;

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(c) authorised to reside in a Member State on the basis of a subsidiary form of protection in accordance with international obligations, national legislation or the practice of the Member States or applying for authorisation to reside on that basis and awaiting a decision on his status. 3. This Directive shall not apply to members of the family of a Union citizen. 4. This Directive is without prejudice to more favourable provisions of: (a) bilateral and multilateral agreements between the Community or the Community and its Member States, on the one hand, and third countries, on the other; (b) the European Social Charter of 18 October 1961, the amended European Social Charter of 3 May 1987 and the European Convention on the legal status of migrant workers of 24 November 1977. 5. This Directive shall not affect the possibility for the Member States to adopt or maintain more favourable provisions. CHAPTER II Family members Article 4 1. The Member States shall authorise the entry and residence, pursuant to this Directive and subject to compliance with the conditions laid down in Chapter IV, as well as in Article 16, of the following family members: (a) the sponsor's spouse; (b) the minor children of the sponsor and of his/her spouse, including children adopted in accordance with a decision taken by the competent authority in the Member State concerned or a decision which is automatically enforceable due to international obligations of that Member State or must be recognised in accordance with international obligations; (c) the minor children including adopted children of the sponsor where the sponsor has custody and the children are dependent on him or her. Member States may authorise the reunification of children of whom custody is shared, provided the other party sharing custody has given his or her agreement; (d) the minor children including adopted children of the spouse where the spouse has custody and the children are dependent on him or her. Member States may authorise the reunification of children of whom custody is shared, provided the other party sharing custody has given his or her agreement. The minor children referred to in this Article must be below the age of majority set by the law of the Member State concerned and must not be married. By way of derogation, where a child is aged over 12 years and arrives independently from the rest of his/her family, the Member State may, before authorising entry and residence under this Directive, verify whether he or she meets a condition for integration provided for by its existing legislation on the date of implementation of this Directive. 2. The Member States may, by law or regulation, authorise the entry and residence, pursuant to this Directive and subject to compliance with the conditions laid down in Chapter IV, of the following family members: (a) first-degree relatives in the direct ascending line of the sponsor or his or her spouse, where they are dependent on them and do not enjoy proper family support in the country of origin; (b) the adult unmarried children of the sponsor or his or her spouse, where they are objectively unable to provide for their own needs on account of their state of health.

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3. The Member States may, by law or regulation, authorise the entry and residence, pursuant to this Directive and subject to compliance with the conditions laid down in Chapter IV, of the unmarried partner, being a third country national, with whom the sponsor is in a duly attested stable long-term relationship, or of a third country national who is bound to the sponsor by a registered partnership in accordance with Article 5(2), and of the unmarried minor children, including adopted children, as well as the adult unmarried children who are objectively unable to provide for their own needs on account of their state of health, of such persons. Member States may decide that registered partners are to be treated equally as spouses with respect to family reunification. 4. In the event of a polygamous marriage, where the sponsor already has a spouse living with him in the territory of a Member State, the Member State concerned shall not authorise the family reunification of a further spouse. By way of derogation from paragraph 1(c), Member States may limit the family reunification of minor children of a further spouse and the sponsor. 5. In order to ensure better integration and to prevent forced marriages Member States may require the sponsor and his/her spouse to be of a minimum age, and at maximum 21 years, before the spouse is able to join him/her. 6. By way of derogation, Member States may request that the applications concerning family reunification of minor children have to be submitted before the age of 15, as provided for by its existing legislation on the date of the implementation of this Directive. If the application is submitted after the age of 15, the Member States which decide to apply this derogation shall authorise the entry and residence of such children on grounds other than family reunification. CHAPTER III Submission and examination of the application Article 5 1. Member States shall determine whether, in order to exercise the right to family reunification, an application for entry and residence shall be submitted to the competent authorities of the Member State concerned either by the sponsor or by the family member or members. 2. The application shall be accompanied by documentary evidence of the family relationship and of compliance with the conditions laid down in Articles 4 and 6 and, where applicable, Articles 7 and 8, as well as certified copies of family member(s)' travel documents. If appropriate, in order to obtain evidence that a family relationship exists, Member States may carry out interviews with the sponsor and his/her family members and conduct other investigations that are found to be necessary. When examining an application concerning the unmarried partner of the sponsor, Member States shall consider, as evidence of the family relationship, factors such as a common child, previous cohabitation, registration of the partnership and any other reliable means of proof. 3. The application shall be submitted and examined when the family members are residing outside the territory of the Member State in which the sponsor resides. By way of derogation, a Member State may, in appropriate circumstances, accept an application submitted when the family members are already in its territory. 4. The competent authorities of the Member State shall give the person, who has submitted the application, written notification of the decision as soon as possible and in any event no later than nine months from the date on which the application was lodged.

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In exceptional circumstances linked to the complexity of the examination of the application, the time limit referred to in the first subparagraph may be extended. Reasons shall be given for the decision rejecting the application. Any consequences of no decision being taken by the end of the period provided for in the first subparagraph shall be determined by the national legislation of the relevant Member State. 5. When examining an application, the Member States shall have due regard to the best interests of minor children. CHAPTER IV Requirements for the exercise of the right to family reunification Article 6 1. The Member States may reject an application for entry and residence of family members on grounds of public policy, public security or public health. 2. Member States may withdraw or refuse to renew a family member's residence permit on grounds of public policy or public security or public health. When taking the relevant decision, the Member State shall consider, besides Article 17, the severity or type of offence against public policy or public security committed by the family member, or the dangers that are emanating from such person. 3. Renewal of the residence permit may not be withheld and removal from the territory may not be ordered by the competent authority of the Member State concerned on the sole ground of illness or disability suffered after the issue of the residence permit. Article 7 1. When the application for family reunification is submitted, the Member State concerned may require the person who has submitted the application to provide evidence that the sponsor has: (a) accommodation regarded as normal for a comparable family in the same region and which meets the general health and safety standards in force in the Member State concerned; (b) sickness insurance in respect of all risks normally covered for its own nationals in the Member State concerned for himself/herself and the members of his/her family; (c) stable and regular resources which are sufficient to maintain himself/herself and the members of his/her family, without recourse to the social assistance system of the Member State concerned. Member States shall evaluate these resources by reference to their nature and regularity and may take into account the level of minimum national wages and pensions as well as the number of family members. 2. Member States may require third country nationals to comply with integration measures, in accordance with national law. With regard to the refugees and/or family members of refugees referred to in Article 12 the integration measures referred to in the first subparagraph may only be applied once the persons concerned have been granted family reunification. Article 8 Member States may require the sponsor to have stayed lawfully in their territory for a period not exceeding two years, before having his/her family members join him/her. By way of derogation, where the legislation of a Member State relating to family reunification in force on the date of adoption of this Directive takes into account its reception capacity, the Member State may provide for a waiting period of no more than three years between submission of the application for family reunification and the issue of a residence permit to the family members.

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CHAPTER V Family reunification of refugees Article 9 1. This Chapter shall apply to family reunification of refugees recognised by the Member States. 2. Member States may confine the application of this Chapter to refugees whose family relationships predate their entry. 3. This Chapter is without prejudice to any rules granting refugee status to family members. Article 10 1. Article 4 shall apply to the definition of family members except that the third subparagraph of paragraph 1 thereof shall not apply to the children of refugees. 2. The Member States may authorise family reunification of other family members not referred to in Article 4, if they are dependent on the refugee. 3. If the refugee is an unaccompanied minor, the Member States: (a) shall authorise the entry and residence for the purposes of family reunification of his/her first-degree relatives in the direct ascending line without applying the conditions laid down in Article 4(2)(a); (b) may authorise the entry and residence for the purposes of family reunification of his/her legal guardian or any other member of the family, where the refugee has no relatives in the direct ascending line or such relatives cannot be traced. Article 11 1. Article 5 shall apply to the submission and examination of the application, subject to paragraph 2 of this Article. 2. Where a refugee cannot provide official documentary evidence of the family relationship, the Member States shall take into account other evidence, to be assessed in accordance with national law, of the existence of such relationship. A decision rejecting an application may not be based solely on the fact that documentary evidence is lacking. Article 12 1. By way of derogation from Article 7, the Member States shall not require the refugee and/or family member(s) to provide, in respect of applications concerning those family members referred to in Article 4(1), the evidence that the refugee fulfils the requirements set out in Article 7. Without prejudice to international obligations, where family reunification is possible in a third country with which the sponsor and/or family member has special links, Member States may require provision of the evidence referred to in the first subparagraph. Member States may require the refugee to meet the conditions referred to in Article 7(1) if the application for family reunification is not submitted within a period of three months after the granting of the refugee status. 2. By way of derogation from Article 8, the Member States shall not require the refugee to have resided in their territory for a certain period of time, before having his/her family members join him/her. CHAPTER VI Entry and residence of family members Article 13

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1. As soon as the application for family reunification has been accepted, the Member State concerned shall authorise the entry of the family member or members. In that regard, the Member State concerned shall grant such persons every facility for obtaining the requisite visas. 2. The Member State concerned shall grant the family members a first residence permit of at least one year's duration. This residence permit shall be renewable. 3. The duration of the residence permits granted to the family member(s) shall in principle not go beyond the date of expiry of the residence permit held by the sponsor. Article 14 1. The sponsor's family members shall be entitled, in the same way as the sponsor, to: (a) access to education; (b) access to employment and self-employed activity; (c) access to vocational guidance, initial and further training and retraining. 2. Member States may decide according to national law the conditions under which family members shall exercise an employed or self-employed activity. These conditions shall set a time limit which shall in no case exceed 12 months, during which Member States may examine the situation of their labour market before authorising family members to exercise an employed or self-employed activity. 3. Member States may restrict access to employment or self-employed activity by first-degree relatives in the direct ascending line or adult unmarried children to whom Article 4(2) applies. Article 15 1. Not later than after five years of residence, and provided that the family member has not been granted a residence permit for reasons other than family reunification, the spouse or unmarried partner and a child who has reached majority shall be entitled, upon application, if required, to an autonomous residence permit, independent of that of the sponsor. Member States may limit the granting of the residence permit referred to in the first subparagraph to the spouse or unmarried partner in cases of breakdown of the family relationship. 2. The Member States may issue an autonomous residence permit to adult children and to relatives in the direct ascending line to whom Article 4(2) applies. 3. In the event of widowhood, divorce, separation, or death of first-degree relatives in the direct ascending or descending line, an autonomous residence permit may be issued, upon application, if required, to persons who have entered by virtue of family reunification. Member States shall lay down provisions ensuring the granting of an autonomous residence permit in the event of particularly difficult circumstances. 4. The conditions relating to the granting and duration of the autonomous residence permit are established by national law. CHAPTER VII Penalties and redress Article 16 1. Member States may reject an application for entry and residence for the purpose of family reunification, or, if appropriate, withdraw or refuse to renew a family member's residence permit, in the following circumstances: (a) where the conditions laid down by this Directive are not or are no longer satisfied.

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When renewing the residence permit, where the sponsor has not sufficient resources without recourse to the social assistance system of the Member State, as referred to in Article 7(1)(c), the Member State shall take into account the contributions of the family members to the household income; (b) where the sponsor and his/her family member(s) do not or no longer live in a real marital or family relationship; (c) where it is found that the sponsor or the unmarried partner is married or is in a stable long-term relationship with another person. 2. Member States may also reject an application for entry and residence for the purpose of family reunification, or withdraw or refuse to renew the family member's residence permits, where it is shown that: (a) false or misleading information, false or falsified documents were used, fraud was otherwise committed or other unlawful means were used; (b) the marriage, partnership or adoption was contracted for the sole purpose of enabling the person concerned to enter or reside in a Member State. When making an assessment with respect to this point, Member States may have regard in particular to the fact that the marriage, partnership or adoption was contracted after the sponsor had been issued his/her residence permit. 3. The Member States may withdraw or refuse to renew the residence permit of a family member where the sponsor's residence comes to an end and the family member does not yet enjoy an autonomous right of residence under Article 15. 4. Member States may conduct specific checks and inspections where there is reason to suspect that there is fraud or a marriage, partnership or adoption of convenience as defined by paragraph 2. Specific checks may also be undertaken on the occasion of the renewal of family members' residence permit. Article 17 Member States shall take due account of the nature and solidity of the person's family relationships and the duration of his residence in the Member State and of the existence of family, cultural and social ties with his/her country of origin where they reject an application, withdraw or refuse to renew a residence permit or decide to order the removal of the sponsor or members of his family. Article 18 The Member States shall ensure that the sponsor and/or the members of his/her family have the right to mount a legal challenge where an application for family reunification is rejected or a residence permit is either not renewed or is withdrawn or removal is ordered. The procedure and the competence according to which the right referred to in the first subparagraph is exercised shall be established by the Member States concerned. CHAPTER VIII Final provisions Article 19 Periodically, and for the first time not later than 3 October 2007, the Commission shall report to the European Parliament and the Council on the application of this Directive in the Member States and shall propose such amendments as may appear necessary. These

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proposals for amendments shall be made by way of priority in relation to Articles 3, 4, 7, 8 and 13. Article 20 Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by not later than 3 October 2005. They shall forthwith inform the Commission thereof. When Member States adopt these measures, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. The methods of making such reference shall be laid down by the Member States. Article 21 This Directive shall enter into force on the day of its publication in the Official Journal of the European Union. Article 22 This Directive is addressed to the Member States in accordance with the Treaty establishing the European Community. Done at Brussels, 22 September 2003. For the Council The President F. Frattini (1) OJ C 116 E, 26.4.2000, p. 66, and OJ C 62 E, 27.2.2001, p. 99. (2) OJ C 135, 7.5.2001, p. 174. (3) OJ C 204, 18.7.2000, p. 40. (4) OJ C 73, 26.3.2003, p. 16. (5) OJ L 157, 15.6.2002, p. 1.

EMN “FAMILY REUNIFICATION” REPORT SMALL SCALE STUDY IV · Entry clearance includes both limited...

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