01/12/2013
On 1st December 2013 some amendments were made to the UK immigration rules that apply to non-EEA family members of those serving in HM Armed Forces. The new rules mainly affect those seeking family visas, including spouse and unmarried partner visas, to enter the UK under the settlement category. All applications made before this date will be decided based on the rules in place as of 30th November 2013, even if the actual decision is made after 1st December 2013. Significant changes to the rules governing the granting of UK marriage and partner visas to non-EEA family members of British citizens and legal permanent residents were made on 9 July 2012. New financial provisions were designed to prevent foreign nationals becoming an unnecessary expense to the British taxpayer. There were also conditions present in the new rules which were specifically included to ensure that those entering the UK on a settlement spousal, fiancee or de facto partner visa would be able to integrate easily into British society. These rules were essentially focussed on two main aspects – a financial requirement, otherwise known as income threshold, on the British sponsor, and language and cultural knowledge on the part of the applicant.
When the new rules became law in July 2012, non-EEA family members of HM Armed Forces personnel were made temporarily exempt, because it was rightly considered that Armed Forces families represent a special case and that further consideration should therefore be given to the rules as applied to them. The consultations between the Home Office and Armed Forces representatives are now complete and the rules which will now be applied to such applications have been made public. The new rules will cover British service personnel and also the families of foreign or Commonwealth citizens who are serving in HM Forces. This includes Gurkhas discharged since 1st July 1997. There are several rules which will apply specifically to service families and also certain leeway situations which are seen as being fair due to the certain circumstances in which serving members of HM Forces and their families may find themselves. In general, however, the aim is to bring the rules in line with those pertaining to civilians.
The financial requirement is one example where there is absolutely no difference, with the minimum income threshold of £18,600 being set for a foreign partner with no dependents, £22,400 for a partner with one dependent and £2,400 for each additional child included in a UK settlement marriage visa application. There was a High Court ruling in July 2013 which cast doubt on the fairness of this threshold and led to an interim moratorium on decisions being made in all cases where the financial threshold was the only factor affecting the success of an application. This will be carried over to apply to service personnel and their families also. The Home Office has appealed the High Court decision and the moratorium will stay in place until the final decision is received, which is due in March 2014.
From 1st December 2013, non-EEA partners of HM Armed Forces personnel between 18 and 65 years of age will have to pass the Life in the UK and B1 English language test (KOLL) before they can apply for indefinite leave to remain (ILR) to stay in the UK on a permanent basis. This test is designed to demonstrate that applicants have a reasonable grasp of British culture and history and also that they understand the basics of life in the UK. Those applying for a UK spousal or partner visa to enter the UK as a family migrant for the first time, will need to pass a mandatory A1 level English language test, as any other civilian applicants making a settlement applications from overseas or applying for further leave to remain or FLR(M) from inside the UK. The normal probationary period of five years before the family member will become eligible to apply for indefinite leave to remain will apply to family members of those serving in HM Armed Forces from 1st December 2013. However, there are some exceptions that will apply only to military families and which are included to deal with certain extenuating circumstances such as when a family is living abroad due to a current posting.
Because of the various special circumstances, a UK settlement marriage visa will be allowed to last for five years with no need to renew, as it is accepted that this kind of form filling may not be possible when stationed overseas. Similarly, time spent overseas on an accompanied posting will be counted towards a residence requirement in the same way as if it had been spent in the UK. Also, if a serving foreign or Commonwealth national in the Forces naturalises as a British citizen, there will be no need to switch immigration routes. If a family member of a serviceperson is bereaved, they will be able to apply for settlement immediately, even if the death is not a direct result of service. If a relationship of foreign or Commonwealth service personnel breaks down due to domestic violence and the sponsor had not served for long enough to qualify for settlement, the partner can also apply immediately for settlement. These special circumstances were added to the rules as a direct result of requests made by the welfare arm of HM Forces.
Anyone who was unable to apply before 1st December 2013 for the sole reason that they were accompanying a member of HM Armed Forces abroad will be dealt with as if the rules of 30th November 2013 still apply. There are no changes planned for the rules relating to foreign or Commonwealth members of HM Armed Forces who are currently awaiting discharge, but if it is due to injury on duty or a medical condition which can be directly shown to be attributable to service, the rules will be relaxed on an individual basis, and this will ultimately depend on the severity of the case.
Other amendments are detailed in the new UK Visas & Immigration (formerly the UK Border Agency) rules, but these are mostly regarding foreign troops in the UK for training purposes. Many countries are bringing in a requirement for TB testing for those entering the country from areas where it is endemic, and therefore there will now be such a requirement for anyone entering the UK for more than six months who has come from Afghanistan. This will affect non-EEA nationals applying for a UK spouse or partner visa under the settlement category.
