Not every immigration case
will fit neatly into
the points-based system

 By Mike Higgs

 25 October 2007

With just a few months to go before the Border and Immigration Agency (BIA) starts to phase in the ‘points-based’ scheme, there is still confusion over how some application categories will fit in to the new system. 

The eighty current routes into the UK will be combined under a five tier points scoring system: Tier 1 - Highly Skilled Migrants, Tier 2 – Skilled Workers, Tier 3 – Low Skilled Workers, Tier 4 – Students, and Tier 5 – Temporary Migrants and Others. 

Tier 1 is due to commence in January, Tier 2 for skilled migrants, such as Senior Carers and Nurses, will come into effect in September 2008 and the entire system is expected to be fully up and running by the end of 2009. 

However, it is unclear how many of the in-country applications can be incorporated into this new system, which largely caters for entry clearance cases.  

For example, Spouse and Dependant Children applications (from abroad and “in country”); Fiancé, Marriage, and other Family applications; the 10 and 14 year Long Residence provisions, and British Citizenship applications, which will remain applications of a type to be made under the various and appropriate paragraphs of the current immigration rules, subject of course to any future changes being made.  

Other examples include applications under EU/EEA Regulations, in respect of which the European Regulations take precedence over UK Immigration Law; applications under various concessions, schemes, and exercises (akin to “amnesties”) as and when they arise and are announced by the Government; and applications ‘outside the rules’ and any current Home Office Policies. 

One such application is for the relatively little known Home Office Policy 6.1 DP 5/96 - Children’s Rule as amended under 6.2; and children born in the UK and who have remained in the UK without having left the UK for 10 years or more can apply for Registration as a British Citizen.  

The Home Office Policy 6.1 DP 5/96 - Children’s Rule as amended under 6.2 states:-

“Removal will not normally be carried out where there are minor dependent children in the family who have been living in the UK continuously for seven or more years. (DP5/96 refers)”.

There are a number of factors which could be considered including:  

·         age

·         ties with the natural parent

·         how often the children see their natural parent

·         maintenance arrangements

·         whether the children could easily adapt to a life abroad

·         whether such a move would cause hardship or put their health at risk

·         whether the children have the right of abode

·         the nationality of the children.  

The above factors are also balanced against the parents' immigration history and any criminal record.

Cases involving children who are British Citizens or have the right of abode here require the authority of a senior caseworker in the relevant casework section for removal.

Immigration law, regulations, and policy are constantly changing, and what might apply today, may not apply tomorrow. To keep abreast of the latest developments, I would suggest you subscribed to one of the free immigration newsletters such as Immigration Matters.

The examples mentioned above require specialist advice and work, and I would recommend you consult a qualified Immigration Adviser.

If you need immigration advice please email me at:

info@immigrationmatters.co.uk

For all the latest immigration news see

www.immigrationmatters.co.uk

Mike Higgs is a
Level 3 Immigration Adviser
and Director of Equalisers Ltd