Immigration restrictions tighten

The year 2023 was undoubtedly characterised by change, and this is especially true for the immigration world. The government’s focus on tackling net migration as one of its key agenda items led to several changes, some of which have already been implemented while others are due to be implemented throughout this year and even into 2025.

As this audience will likely already be aware, there is often a lot of overlap between family law and immigration law, from British citizens getting married to, or separated from, foreign nationals, to UK-based couples looking to adopt from overseas or high net worth families planning to split their time and residence between several countries. It follows, therefore, that the recent and upcoming immigration changes may have an impact on family law practice.

Below is an overview of some of the changes that may be of relevance to you and your clients.

Illegal Migration Act 2023

The Illegal Migration Act (IMA) 2023 received Royal Assent on 20 July 2023. Its main aim is to discourage people from arriving in the UK unlawfully by either returning them to their home country or another “safe” country (eg Rwanda); or by preventing their ability to subsequently obtain lawful immigration status or citizenship.

The main catalyst for the IMA 2023 has been asylum seekers arriving in small boats and, as such, the primary focus of the Act has been on policing the manner by which people enter the country. Whilst it is likely that family law practitioners will find that their clients are not majorly affected by its provisions, it is worth noting that the scope of the Act is not limited to asylum seekers alone. Rather, any individual who enters the UK without immigration permission will face being removed and also a lifetime ban on obtaining status and British citizenship. In addition, where an individual is found to have used deception to obtain immigration permission and their permission is ultimately cancelled or curtailed, they will also be prevented from regularising their status in future.

Considering the general scope of your work, the main takeaway is that these provisions extend to children who arrive in the UK, either unaccompanied, or alongside family members who also do not have valid immigration permission. Unaccompanied children will be moved into local authority care until they can be removed when they turn 18.

Accordingly, for those who have young clients who are in care, you may find that, going forward, they are unable to secure their ongoing right to remain in the UK.

Partner visas

Minimum income threshold 

The UK’s partner visa category has long been criticised for its exclusionary financial requirement which requires applicants to demonstrate an income of at least £18,600 before being able to live in the UK with their British citizen partner. Despite this, in December 2023, the government announced plans to further increase the threshold to £29,000 in Spring 2024 in anticipation of a full increase to £38,700 in early 2025.

The income threshold is the minimum amount that must be shown as part of a partner application and applicants may need to show access to a higher amount if non-British children will be coming to the UK as well.

In practice, for family lawyers, these changes could affect the plans and timelines for your clients who are currently based overseas but looking to relocate to the UK with their non-British family. In particular, in cases where the British partner has not been working whilst abroad, it may be that relocation plans will need to be pushed back so that the necessary funds can be accrued. This is because, under current rules, the non-British partner cannot rely on their employment to meet the income threshold for the very first application to enter the UK.

Likewise, couples with limited income (eg pensioners) or those with inconsistent/ad hoc work are likely to find it more difficult to meet the requirements for a partner visa.

Absences

The partner visa category does not currently include a specific absence requirement, neither has the government announced plans to introduce one. However, as we often encounter high net worth clients who split their time across the UK and other jurisdictions, it is worth noting that an absence requirement could be introduced in the near future.

Currently, the partner route is quite flexible and does not require applicants to account for the time they have spent outside of the UK in order to extend their permission or apply for settlement (although individuals do need to be sure that any travel is consistent with an ongoing intention to reside in the UK). In comparison to the majority of immigration routes, the lack of an absence requirement is unusual. As a potential first step to restricting absences across the entire category, in 2022 the Home Office introduced an absence requirement for certain applications under the partner category (where an applicant is asking the Home Office to exercise discretion for one or more requirement). It is reasonable therefore to expect that it may only be a matter of time before this restriction is extended to cover the entire category.

For your clients who maintain multiple homes and are intending to do so for the foreseeable future, the possibility of having to limit their absences from the UK at some point in future should be kept in mind.

So how can family law practitioners help?

If one wanted to identify an overarching theme for the recent changes to immigration requirements, it would be: tightening restrictions. Over time, we are seeing the government become more stringent in its reforms and, as a result, the ability of people to come, stay and settle in the UK is being curbed rather than opened up.

Given the tough landscape, it may be beneficial for family lawyers to identify the earliest opportunity where immigration assistance may be required for their clients. Circumstances which could possibly indicate the need for immigration advice include:

• you are instructed in relation to a divorce where one of the parties is not British or settled in the UK
• clients are seeking advice regarding pre-nuptial agreements and one party is not British
• you act for children who are currently in the care system or with whom, you are aware, social services have been involved
• you are instructed in relation to families with non-British/settled members and you are aware that there are (or have been) criminal investigations
• you advise families who are based in the UK but also split their time across at least one other jurisdiction

Ultimately, in the immigration world, acting at the earliest opportunity, with a complete picture of an individual’s circumstances, often gives our clients the best chances of securing their interests or planning an alternative course of action.

bosuntoki@kingsleynapley.co.uk