SET10.1 Family reunion policy

The framework against which Family Reunion applications are made is contained in Part 11 (Asylum) of the Immigration Rules, paragraphs 352A - 352FI. (Rules 352A)

a) Introduction

The UK Border Agency (UKBA) recognises that families become fragmented because of the speed and manner in which a person seeking asylum has fled to the UK. Family reunion is intended to allow dependent family members to reunite with their sponsors who are recognised refugees, or who have 5 years Humanitarian Protection leave in the UK. Under the Immigration Rules, only pre-existing families are eligible for family reunion, that is, spouse, civil partner, unmarried / same sex partner and minor biological children who formed part of the family unit at the time the sponsor fled to seek asylum.

Children of the sponsor who were conceived before the sponsor fled to seek asylum but born post-flight will also be regarded as part of the sponsors' pre-existing family unit (See e) and f) below).

ECOs should bear in mind, when considering family reunion applications, that the Human Rights Act 1998 incorporates into domestic law those rights and freedoms guaranteed under the European Convention on Human Rights. Article 8 guarantees that everyone has the right to respect for private and family life.

This guidance is to help Entry Clearance Officers (ECOs) in determining applications made by the sponsor's pre-flight family unit, who now want to be reunited with the sponsor in the UK, under the family reunion provisions contained in Part 11 of the Immigration Rules. 

The sponsor must have been:

• recognised as a refugee (who is not a British Citizen);
• granted 5 years  Humanitarian Protection; or
• recognised as a refugee under the Gateway Protection Programme / Mandate refugee Programme

b) Family reunion entitlements

It is the UKBA's policy that those who are eligible to apply for family reunion and meet the requirements will normally be granted leave in line with the sponsor. 

Sponsors granted status before 30 August 2005

Refugee sponsors granted status before 29 August 2005 would have been granted Indefinite Leave to Remain (ILR) in the UK by the Home Office. This meant that they could stay in the UK indefinitely without any time restrictions on their stay. Applicants being issued with entry clearance to join their sponsor in the UK should be granted Indefinite Leave to Enter (ILE) at a visa issuing post, in line with their sponsor's leave. They can enter and stay in the UK indefinitely and will have no time restrictions on their stay. Anyone who has ILE does not have to apply for ILR when in the UK. 

See section 2b for those granted Humanitarian Protection before 30 August 2005. 

Sponsors granted status from 30 August 2005

Since 30 August 2005 recognised refugees and those granted Humanitarian Protection (See section 2) in the UK will have been granted five years limited leave. Their leave is subject to review at the expiry of or during those five years where there is a 'significant' and non-temporary change in the country of origin or on the basis of the actions of the individual. Dependants should be granted leave in line with the principal sponsor.

c) Family reunion costs and charges

Applications for family reunion for pre- existing family members under Part 11 of the Immigration Rules are gratis and the sponsor will not be required to meet any maintenance and accommodation requirements in the Immigration Rules.

d) Eligibility

The Immigration Rules, paragraphs 352A-352FI lay out in detail, the criteria for family reunion applications.  The particular rule applicable to an individual applying for family reunion will depend upon the relationship of the applicant to the sponsor, and on the sponsor's status.

e) Qualifying family members:

For the purposes of Family Reunion under the Immigration Rules, family members include:

• A spouse
• A civil partner
• An unmarried / same sex partner providing that the parties have lived together in a relationship akin to either marriage or civil partnership for two years or more and the sponsor was granted asylum or humanitarian protection on or after 9 October 2006.
• A child, who is the child of the parent who is currently a refugee in the UK, is under the age of 18, who is not leading an independent life, is unmarried and is not in a civil partnership and has not formed an independent family unit.
• A child conceived before the sponsor fled to seek asylum in the UK but was born post-flight does not meet the requirements of rules 352D(iv) but should be treated as part of the pre-flight family of the sponsor.

f) Non-qualifying sponsors:

If the sponsor in the UK is:

• An asylum seeker whose claim in the UK has not been determined.
• Someone who had previously been granted Discretionary Leave or Exceptional Leave or currently has Discretionary Leave or Exceptional Leave.
• Someone granted refugee status but who is now a British Citizen. (Family members of a British citizen must apply for settlement under the Rules and pay the appropriate fee, (Para 339BA of the Immigration Rules).
• A person who has obtained their status as a result of being the dependant of a sponsor who was recognised as a refugee are not entitled to sponsor an application for family reunion. The family reunion rules, paragraphs 352A-352F) clearly states that only a person who has fled their country of former habitual residence, then has been recognised as a refugee in the UK is entitled to have their family members apply to join them.
  
  Note: Staff should note that a family member granted entry clearance into the UK under the refugee family reunion rules may not in their own turn sponsor into this country other family members under Part 11 of the Immigration Rules. This is because they are not deemed to be a refugee for the purposes of the 1951 Convention and have not qualified as such unless they themselves make a successful application for asylum once in the UK. As of 21 February 2011 an endorsement on the observations page of a 1951 Convention Travel Document issued to family members will say 'The holder cannot support family reunion applications'.
• A child under the age of 18 years, who has been granted refugee status. There is no provision within the Rules for children recognised as refugees to sponsor family members.
• Post flight family members are not eligible to apply for family reunion. (See paragraphs 352 of Immigration Rules (Rules 352A) Family reunion), and see g(4) below.
  • has committed a crime against peace, a war crime or a crime against humanity;
  • has committed a serious non-political crime;
  • has been guilty of acts contrary to the purposes and principles of the United Nations.
• Sponsors whose asylum claim was refused by UKBA, but who were subsequently granted Indefinite Leave to Remain Outside the Rules at the discretion of the Secretary of State. For example, by Family ILR Exercise 2003, Case Resolution Directorate or Suspended Cases Project.

g) Processing Family Reunion applications - Sponsors recognised as a Refugee (paragraphs 352A, 352AA and 352D)

1) Spouse / Civil Partner / same-sex partner (paragraphs 352A and 352AA)

When dealing with family reunion applications, the ECOs will need to be satisfied:

• that the sponsor has been recognised as a refugee in the UK and has not changed their status in the UK;
• the applicants are related as claimed to the sponsor as pre-flight family members;
• the spouse has met the sponsor;
• the marriage / civil partnership is subsisting.

Note: Unmarried and same-sex partners are only eligible if their sponsor was recognised as a refugee on or after 9 October 2006.

English Language requirement and the Knowledge of Language and Life in the UK (KOL)

Currently there is no requirement for spouse / CP / unmarried partners / same sex partners to have passed an English Language test nor is there a requirement to take and pass the KOL for those who qualify for entry clearance and leave to remain under the Family Reunion criteria.

2) Minor children

These applicants must meet the requirements of Paragraph 352D of the Rules. Children of the sponsor who were conceived before the sponsor fled to seek asylum in the UK, but were born post flight do not meet the requirements of rule 352D (iv) but should be treated as part of the pre-existing family of the sponsor. However, the ECO must be satisfied that they are related as claimed and may need to request a DNA test. (See SET 7.11). Where it is evident that the child's parents have separated because the partnership has dissolved then the ECO should consider whether the child is still dependent on the sponsor in the UK.

3) Other Dependent Relatives

Other Dependent Relatives (for example, elderly parents, brother, sister etc) and dependent children over the age of 18 who do not meet the criteria for family reunion under this section of the Rules. (See SET19)

But if the sponsor has ILR, that is, granted refugee status pre-August 2005 or granted ILR following 5 years refugee leave, other dependent relatives and dependent children over the age of 18 should be advised to seek entry clearance under paragraph 317 via the settlement route and pay the relevant settlement fee. This also applies to 'post-flight' family members and minor other dependant relatives.

4) 'Post-flight' family members - see SET18

Spouses / civil partner / unmarried / same sex partners who married / entered into a civil partnership / relationship after the sponsor fled to seek asylum, do not qualify under family reunion. 

5) The parents and siblings of a minor

The parents and siblings of a minor who has been recognised as a refugee are not entitled to family reunion. This is a mandatory referral to RCU (see ECG on referrals) if they are satisfied that there are exceptional compassionate circumstances which warrant  consideration outside of the Rules.

6) Proof of relationship

Applicants should include the following documents with their application to confirm they are related as claimed:

• Marriage certificate (original preferably or a copy)
• Wedding photos
• Birth certificate (original preferably or a copy)
• Original letter from UKBA confirming the sponsor's leave status in the UK
• Family photos (where possible)
  
  If insufficient evidence has been provided by the applicant, the application may be deferred and further enquiries made to the Evidence and Enquiries Unit (see ECG on referrals). For example, enquiries with E+E may confirm that the relationship is as claimed if mentioned on the sponsor's SEF application form.

h) Endorsements

Entry clearances should be endorsed:

'FAMILY REUNION' with 'the sponsor's initial and surname added in the additional endorsement field.

Validity should be granted in line with the sponsor's leave.

Where the sponsor has been recognised as a refugee in the UK pre-30 August 2005 they will have indefinite leave to remain and the applicant should be granted ILE in line with that of the sponsor and valid to the term of the passport.

Where the sponsor was recognised as a refugee on or after 30 August 2005, limited leave should be granted to expire in line with the sponsor's leave on Code 1A. This code shows that the applicant is a dependant of a refugee in the UK.

Staff should note that a family member granted entry clearance into the UK under the refugee family reunion rules may not in their own turn sponsor into this country other family members under Part 11 of the Immigration Rules. This is because they are not deemed to be a refugee for the purposes of the 1951 Convention and have not qualified as such unless they themselves make a successful application for asylum once in the UK.  Please note that a family member is legally entitled to a 1951 CTD (Convention Travel Document), however, as of 21 February 2011 an endorsement on the observations page of a 1951 CTD issued to family members will say 'The holder cannot support family reunion applications'.

In certain circumstances, the applicant will not possess a travel document or a passport recognised by HMG. If entry clearance is granted, the ECO should seek the authority of the ECM to issue entry clearance on a UFF (Uniform Format Form).

The ECO can issue a UFF with:

• ILE for 12months if sponsor has ILR or
• Limited Leave to Enter in line with sponsor if sponsor has Limited Leave to Remain.

i) Refusal

ECOs must clearly state in the refusal notice the reasons for their decisions and state what, if any, compelling and compassionate circumstances were considered and why they are not satisfied that the application should warrant consideration outside of the Immigration rules.

j) Right of appeal

Applicants for family reunion who are refused are entitled to a full right of appeal under Section 82(2)(b) of the Nationality, Immigration and Asylum Act 2002.

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