Amendments to Immigration Rules for members of HM Forces - new Appendix AF
With effect from 1 December 2013, the Immigration Rules will be amended for applications made by members of HM Forces and their family members. The statement of changes in Immigration Rules HC803 will introduce a new Appendix Armed Forces (AF) into the Rules and will apply in the following circumstances:
- Armed Forces personnel who enlist on or after 1 December 2013;
- Armed Forces personnel enlisted before 1 December 2013, but who establish a family life on or after 1 December 2013;
- Family members of Armed Forces personnel who seek to join them in the UK on or after 1 December 2013.
Those who have been granted leave to remain under the existing immigration rules under either Part 7 or Part 8 will still be subject to the current version of the immigration rules. However, if applying for settlement, the new knowledge of language and life in the UK requirement which was introduced on 28 October 2013 must be satisfied.
The main changes which Appendix AF introduces relate to family members of serving members of HM Forces. Appendix AF is being introduced in order to align the requirements for entry clearance, leave to remain and settlement with the new family immigration framework as set out within Appendix FM of the Immigration Rules.
The main requirements of the new Appendix AF are as follows.
Minimum income threshold
A minimum income threshold has been introduced which must be satisfied by producing specified evidence. The income threshold is £18,600 for a partner, £22,400 for a partner and a child, and £2,400 for each additional child thereafter. The evidential requirements for meeting the income threshold will be the same as those under Appendix FM-SE of the Immigration Rules. This will be considered with reference to:
- The sponsor's gross annual income from employment or self-employment (if the applicant is outside the UK) or the sponsor and the applicant's income from employment or self-employment if the applicant is in the UK and is working lawfully;
- Specified cash savings;
- Specified pension income;
- Other specified non-employment income.
In limited circumstances some applicants may be exempt from this income threshold if their sponsor is in receipt of certain public funds, including (amongst others) Armed Forces Independence Payment, Guaranteed Income Payment under the Armed Forces Compensation Scheme, Constant Attendance Allowance, Mobility Supplement or War Disablement Pension under the War Pensions Scheme. In these circumstances the applicant and sponsor will be required to provide evidence that they are able to maintain and accommodate themselves and any dependants 'adequately' without recourse to public funds.
English language requirement
The new Rules also introduce an English language requirement. At the initial application/entry clearance stage applicants will need to provide evidence that they meet the English language requirement at level A1 of the Common European Framework of Reference for Languages (CEFR).
At the settlement stage, the applicant will be required to pass the Life in the UK test and hold an intermediate speaking and listening qualification at level B1. For applicants who have not yet obtained a qualification at level B1 they will be able to apply for further limited leave to remain which will allow them the opportunity to satisfy the language requirement without remaining in breach of the Immigration Rules.
Five year route to settlement
Similar to the requirements under Appendix FM, all partners of HM Forces personnel who are not citizens of a country within the European Union are required to complete a five year probationary period before being eligible to apply for settlement.
However, unlike Appendix FM, the validity of the initial grant of leave to enter or remain under Appendix AF will be five years. This has its advantages and disadvantages. In terms of advantages, applicants will be able to qualify for settlement without needing to apply for an extension of stay and pay an additional fee. In addition, the Rules state that time spent overseas on an accompanied posting will be regarded as time spent in the UK for the purpose of calculating the residence requirement for settlement.
A potential disadvantage to being granted leave for five years arises in the context of the income threshold. Where the sponsor's income does not meet the required threshold, the sponsor and applicant may demonstrate that they have sufficient savings to count against the shortfall. The amount of cash savings above £16,000 can be counted towards the shortfall against the £18,600 threshold. The exact amount of cash savings will be calculated on the basis that the amount of the shortfall will be multiplied by 5 to reflect the five year probationary period (as opposed to 2.5 for family members under Appendix FM), and then £16,000 is added to give the total amount of cash savings required.
By way of an example, an applicant whose sponsor has a gross annual income of £15,000 will be required to show cash savings of £34,000 (£3,600 (shortfall) x 5 = £18,000 + £16,000 = £34,000).
New application forms will be introduced from 1 December 2013 designed specifically for the Armed Forces community. This will enable identification and, where appropriate, prioritisation of applications in this category.
For further advice on the requirements for leave to remain in the UK as a family member of a serving HM Forces member, or in relation to any other immigration category, then please contact our experienced immigration barristers in Covent Garden, London, on 0203 617 9173 or email email@example.com.