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How Immigration Lawyers use Home Office Guidance

As an immigration lawyer, you will be well aware of the Immigration Rules and the requirements that must be met when making applications. In some cases, the Immigration Rules can be difficult to follow. This is due to the way the Immigration Rules have developed over years with Rules being deleted and replaced in different areas.

A stricter task for Immigration Solicitors after 2012

The Immigration Rules in respect of spouses of British Nationals for example previously existed at Immigration Rule 280 onwards, but in the changes to the Immigration Rules that occurred in July 2012 these Rules ceased for initial entrants to the route and the new Immigration Rules were introduced at Appendix FM of the Immigration Rules. There are also detailed additional Rules on Specified Evidence contained at FM-SE of the Immigration Rules. These Rules must be carefully considered with any application as they contain all of the requirements which must be met and detailed information on the documentation that must be provided and the form that documentation must take.

In addition to the Immigration Rules there is guidance available which gives details of how caseworkers at the Home Office deal with applications and apply the Immigration Rules. In the example above of the Spouse Rules, you, as the immigration lawyer, would have to have regard to the guidance entitled Family Policy Family life (as a partner or parent), private life and exceptional circumstances. The most recent version of this guidance was issued in July 2019 and covers both 10 year and five year routes to settlement. There is also specific guidance by the Home Office on the financial requirement at Appendix FM 1.7: financial requirement and English Language at Appendix FM 1.21: English language. It is crucial that these documents of guidance are regularly reviewed to consider changes that may have occurred since previous publications.

Immigration Rule paragraphs of general application

Another important rule within the Immigration Rules which is essential reading for any immigration lawyer is Rule 6 of the Immigration Rules. Rule 6 provides definitions of words used elsewhere within the Immigration Rules. It is worth noting that words that appear in the interpretation section elsewhere in the Rules will often be capitalised if they appear in Rule 6. Rule 6 definitions can vary the ordinary meaning of a word or phrase. For example Parent is defined by Rule 6 as a step-parent where the biological parent is dead, an adoptive parent and even, in the case of a child born in the UK, a person with parental responsibility for the child where the parent has been unable to care for the child.

Another example of interpretation which provides considerably more detail than features in the relevant rules is ‘must not be leading an independent life’. This phrase appears in various sections of the Rules, often relating to children that have applied to come into the UK with their parents, but have become adults since arrival in the UK. The definition at Rule 6 provides that to show a person is not living an independent life that person must not have a partner within the meaning of Appendix FM, must be living with their parents, albeit boarding school and university attendance are excused, and must be dependent on parents for emotional and financial support. Minors must also not be in full-time work.

There are various other paragraphs which are of general application.

In conclusion it is important not only to read the immigration rules carefully, but cross reference important turns of phrases against case law for interpretation.

Westkin Associates

info@westkin.com

5th Floor, Maddox House,
1 Maddox Street
Mayfair
London
W1S 2PZ
United Kingdom
0207 118 4546

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