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Together Forever? EU Nationals Face Tough New Rules For Bringing Spouse To UK

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Recently, the British Government outlined its proposals for the rights of EU nationals following Brexit. EU citizens who have lived in the UK for five years or more will be invited to apply for Settled Status. EU citizens who arrive before the cut-off date (the date the EU freedom of movement ceases to apply for entry into Britain) but have not built up five years’ continuous residence at the time of Brexit will be able to apply for temporary status so they can remain in the UK until they have accumulated five years. Once they have qualified, they will be able to apply for Settled Status.

In addition to setting out the principles for Settled Status, Britain’s Prime Minister, Theresa May stated that family dependents joining EU citizens living in the UK after Britain's exit from the EU "will be subject to the same rules as those [non-EEA family members] joining British citizens".

After Brexit, EU citizens will no longer be able to rely on the European Court of Justice (ECJ) to protect their rights, instead, the UK courts will guarantee their rights.

On a jurisprudence level, this makes sense; even the best Immigration solicitors will admit that. If EU nationals were permitted to bring family members into the UK after Brexit under more lenient criteria than people who had acquired settled status in the UK, two classes of citizens would effectively be created, with EU nationals enjoying greater rights than British citizens. The same applies to allowing the ECJ to continue to have jurisdiction in the UK; such a move would provide EU nationals living in Britain access to justice denied to its own citizens.

And given the recent rise of populism, such a move could be highly inflammatory.

But regardless of the rights or wrongs of the government’s announcement, EU nationals currently living or planning to live in the UK face dramatic changes to their ability to bring family members to the UK. And judging by the hundreds of ‘Skype families’ created by Theresa May’s family visa policies whilst she was Home Secretary, many will be in for a lot of heartbreak and frustration.

The current rules for non-EEA migrants who wish to bring family members to the UK

EU nationals are likely to be shocked at the draconian policy applied to non-EEA migrants who wish to bring their family members to the UK. Currently, to join a family member living in the UK you will need to show:

  • you are being sponsored by your family member who is a British citizen, has refugee or protection or settled status (i.e. Indefinite Leave to Remain or permanent residence) in the UK
  • you pass the knowledge of English requirements
  • your sponsor can meet the Minimum Income Threshold
  • your sponsor can provide adequate accommodation

A family member is defined as a:

  • spouse or partner
  • fiancé, fiancée or proposed civil partner
  • child
  • parent
  • relative who’ll provide long-term care for you

The Minimum Income Threshold

Of all the requirements of a UK family visa, this is the most difficult. Currently, the sponsor must earn a minimum of £18,600 per year. Immigration lawyers are often confronted with distressing stories of sponsors who are desperate to be reunited with their family members, but despite having done their best, they are unable to meet the minimum income requirement.

If sponsors wish to bring children to the UK, the Minimum Income Requirement increases further. For one child, the sponsor must be earning £22,400, and a further £2,400 will be required for each additional child.

It is estimated that 40% of UK citizens would be unable to meet the Minimum Income Threshold.

In February 2017, the Supreme Court stated that the Minimum Income Threshold was legal “in principle,” but Immigration officials need to consider the rights of children more carefully and acknowledge third-party funding in some cases.

Adult Dependent Relatives

Another area where the application of Immigration law is extremely hard on non-EEA nationals is when a settled person in the UK wishes to bring an elderly parent or another adult dependent relative to the UK. Many individuals who have chosen to live in another country deal with guilt and worry over an elderly parent who may be struggling to take care of themselves and facing increased isolation and loneliness.

Under the current rules, to bring a dependent parent, grandchild, brother, sister, son, or daughter to the UK to live with you, it must be proven that:

  • they need long-term care to do every day personal and household tasks because of illness, disability, or their age
  • the care they need is not available or affordable in the country they currently live in
  • you, as the sponsor, will be able to support, accommodate and care for the applicant without claiming public funds for at least five years

The criteria effectively creates an almost impossible obstacle for those wanting to bring an adult dependent relative to the UK. In theory, if a sponsor can afford to support and accommodate a relative who needs long-term care, then they should be able to pay for that care to be provided in the applicant’s home country.

Fortunately, for those desperate to bring vulnerable, elderly family members to the UK so they can be cared for by loved ones, the recent case of Dasgupta (error of law – proportionality – correct approach) [2016] UKUT 28 (IAC) confirmed that the Article 8 of the ECHR is flexible enough to bypass the Adult Dependent Relative rules by reference to ‘exceptional circumstances.'

What can EU citizens do to ensure family members can join them in the UK?

EU nationals currently living in the UK need to bring their families to the UK before the cut-off date (which has yet to be announced). OTS Solicitors can assist you and your family in applying for Settled Status and answering any questions you have about the effect of Brexit on your Immigration status.

Do not leave this too late. The challenges and expense faced by non-EEA nationals trying to bring their family members cannot be overstated.

OTS Solicitors is one of the most respected Immigration law firms in London. By making an appointment with one of our Immigration solicitors, you can be assured of receiving some of the best legal advice available in the UK today. We provide clear, practical advice on what EU nationals and their families should do to solidify their right to remain in the UK post-Brexit.

If you wish to discuss any of the points raised in this blog, please phone our London office on 0203 959 9123.

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