The UK Border Agency has recently released a public consultation, looking at the visa categories open to family members of British citizens and other visa holders.

It is important to note that the possible changes outlined below are only at consultation stage. No changes will be finalised before the consultation closes on 6th October.

Changes to the Immigration Rules are usually introduced in April of each year, so we expect that any changes adopted from this consultation will come into force in April 2012.

Spouses or partners of British citizens or people settled here

Spouse visa maintenance

Currently the spouse of a British citizen or person settled here is able to apply for a 27 month spouse visa. They must meet an English language requirement, show the relationship is subsisting and demonstrate that they have access to finances of at least income support level – around £100 per week for the couple.

The UKBA plans to introduce new clear minimum income requirements for sponsors of spouse visa holders. The UKBA plans to take into account only the income and savings of the sponsor (the British or settled person). They may stop an individual from sponsoring a spouse visa if they have claimed benefits in the twelve months prior, as this could demonstrate they are unable to support themselves.

Settlement from a spouse visa

Currently, non-EEA Nationals who have lived outside the UK for four years with their British spouse or civil partner are able to apply for Indefinite Leave to Enter immediately. This applies only to spouse or civil partners. This provision allows the spouse or civil partner to enter the UK with no time limit on their stay, as the relationship has already proven to be durable outside the UK.

Other applicants (spouses, civil partners, unmarried or same sex partners) can apply for a spouse visa, which is issued for 27 months. After two years in the UK, they can apply for Indefinite Leave to Remain.

The UKBA plans to abolish Indefinite Leave to Enter for spouses. All spouses* will be required to complete a five year probationary period. Only after five years in the UK, if the relationship is still subsisting, will the spouse* be able to apply for Indefinite Leave to Remain.

The UKBA is also considering introducing a requirement that couples demonstrate their attachment to the UK. The couple should have more ties to the UK than to any other country. This may be measured by the duration of each person’s residence in the UK, any qualifications undertaken in the UK and work or children in the UK.

Other dependant relatives of British citizens or people settled here

English language requirement for adult dependants

Dependants, other than spouses*, do not currently have to demonstrate any English language ability when applying for limited leave.

The UKBA plans to introduce an English language requirement for dependants aged 16 – 64. These applicants would need a basic level of English (level A1 of the CEFR) in order to make a successful dependant visa application.

Settlement for adult dependants

Adult dependants of British citizens or people settled here are currently able to apply for Indefinite Leave to Enter. This allows them to enter the UK with no time limit on their stay.

The UKBA plans to abolish Indefinite Leave to Enter for adult dependant relatives of British citizens or people settled here. All adult dependant relatives will be required to complete a five year probationary period. Only after five years in the UK, if the relative remains dependant on the sponsor, will they be able to apply for Indefinite Leave to Remain.

Dependant relatives of PBS migrants

English language requirement for dependants of PBS migrants

Currently dependants do not have to demonstrate any English language ability when applying for limited leave. Dependants aged 18 – 64 only need to demonstrate their English language ability at the time of their Indefinite Leave to Remain application.

The UKBA plans to introduce an English language requirement for dependants aged 16 – 64. These applicants would need a basic level of English (level A1 of the CEFR) in order to make a successful dependant visa application.

Settlement for adult dependants of PBS migrants

Currently partners of PBS migrants need to complete two years in the UK before they can be included on the main applicant’s Indefinite Leave to Remain (ILR) application.

The UKBA plans to change the qualifying period for ILR for spouses of PBS migrants. All dependant partners will be required to complete a five year probationary period. Only after five years in the UK, if the relationship is subsisting, will they be able to apply for Indefinite Leave to Remain.

ECHR Article 8

Article 8 of the European Convention on Human Rights is concerned with respect for private and family life.

This right, however, is not an absolute right. This means, that where other interests are in opposition to this right, it can be ‘overruled’. The government is currently looking at when it would be necessary to interfere with a person’s right to private and family life.

The government states that it may be appropriate to interfere with this right when it is in the public interest, e.g. when it is necessary for public protection or would be in the country’s economic interest.

The government will be looking at how to balance the individual’s right to private and family life, and public protection. Once these decisions have been made, the Immigration Rules will be amended to reflect them.

*Where ‘spouse*’ is used in this article, the term covers spouses, civil partners, unmarried partners and same sex partners.