Changes to the Immigration Rules relating to family and private life

The following minor changes and clarifications are being made to the Immigration Rules relating to family life. If you would like to get some legal advice before submitting an application for leave to remain based on Human Rights, contact us on 0207 237 3388 or e-mail us your query to info@icslegal.com. 

• To clarify that the transitional provisions for further applications made by those granted entry clearance or limited leave to enter or remain under Part 8 of the Rules before 9 July 2012 can only be accessed by persons in the UK and subject to the requirements of Part 8 for such applications.

• To provide that a person may apply for further limited leave to remain as a partner under Part 8 within a period of 28 days of the end of their last such leave.

• To provide that the partner of a Points Based System migrant not on a route to settlement cannot switch into the partner route under Part 8 and amalgamate their leave as a partner under both routes towards the qualifying period for settlement.

• To ensure that references to the UK National Recognition Information Centre are correct. (UK NARIC is the agency responsible for providing a comparison of international qualifications against UK qualification framework levels).

In respect of the financial requirements for partners and dependent children under Appendix FM and Appendix FM-SE:

To clarify the basis on which non-salaried employment income at the date of  application is calculated. This will be done by calculating that income on the annualised basis of the gross monthly average in the period of 6 months prior to application.

To add Personal Independence Payment to the list of benefits and allowances received by the applicant’s partner which mean that the applicant has to meet an ‘adequate’ maintenance requirement. A joint review by the Department for Work and Pensions and the Home Office of the treatment of disabled people and carers as sponsors under the financial requirements under Appendix FM is ongoing and will be concluded shortly. An applicant who relies on this provision for ‘adequate’ maintenance cannot expect that they will necessarily be able to do so in any future application for leave to remain under Appendix FM.

To clarify that, where the applicant and their partner are resident in the UK at the date of application, rental income from a property in the UK cannot be counted as income if that property will become their main residence if the application is granted. To confirm that cash income on which the correct tax has been paid may be counted as income. To confirm that, where an academic stipend or maintenance grant is or will be paid on a tax-free basis, the gross equivalent amount may be counted as income. To confirm that the UK Border Agency has discretion to contact the applicant to request further information or documents before making a decision on the application.

The following minor changes and clarifications are being made to the Immigration Rules relating to private life

To confirm that a valid application is required to be made for leave to remain on the grounds of private life, except in the same specified circumstances as when such a valid application is not required for leave to remain on grounds of family life. For example, those circumstances include when the claim is raised as part of an asylum claim or as part of a further submission in person after an asylum claim has been refused; where a migrant is in immigration detention; where removal directions have been set pending an imminent removal; and in an appeal. To make a minor clarification to the drafting of the provision relating to applications for Indefinite Leave to Remain on the basis of private life.

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