Quietly, the government has recently introduced significant changes to the suitability rules which apply to those who are the spouse or parent of a British citizen or settled person. These changes are in force now, and are likely to impact a range of applicants, including those who have already been granted visas on this basis before.

In summary, there are no longer separate suitability requirements for those applying on the family routes. In this blog, we will highlight some of the most significant changes.

Introduction of re-entry bans

For the first time, there are now mandatory re-entry bans for those applying under the family routes where the applicant has breached immigration law in the past. Previously, the family routes were exempted from these re-entry bans. This is no longer the case, meaning that if somebody has, for example, overstayed before leaving the UK to apply under the family routes, they will need to wait 12 months after they leave before applying, leaving families separated.

Discretionary refusal for previous breaches of immigration law

Outside of the mandatory re-entry bans, there is now a broad, discretionary power to refuse applications where the applicant has previously breached immigration law, at any time in the past. This applies to applications made in-country, too, including applications for indefinite leave to remain.

There is a tension here, because the family route rules include a set of exceptions for those who do not meet the immigration status requirements. Presumably, this discretionary power would not be used in such cases. However, there will be applicants who meet the immigration status requirements, and have perhaps been on a family route for some time, who may be at risk of refusal on the grounds of historic overstaying or other immigration breach. We will need to wait and see how this provision is used in practice.

Expansion of criminality grounds for refusal

There are also a series of changes which would allow the Home Office to refuse applications on the basis of a far wider range of criminality.

Firstly, the rules have changed to treat suspended sentences the same as custodial sentences, even where they are not activated. As a result, they will be treated differently to non-custodial sentences (despite being wholly non-custodial in many cases). Therefore, if an applicant has a suspended sentence of 12 months or more, they fall for refusal under the suitability rules. This presents an unusual dynamic whereby it may be more advantageous for an applicant to have a short custodial sentence on their criminal record than a suspended sentence in which they spend no time in prison.

Secondly, the family rules used to set time limits, whereafter criminality may not necessarily be a ground for refusal. For example, where an applicant had received a custodial sentence of less than 12 months, this would normally only lead to an application being refusal if it was made within five years of the end of that sentence. This has been replaced by two broad rules: any sentence of 12 months or longer is a mandatory ground for refusal, and any other criminal penalty may be a ground for refusal at any time. The Home Office guidance sets out various factors to be taken into account.

Impact on applicants

These are significant changes which will lead to many applicants – including those who have been lawfully resident in the UK on family routes for a long time – facing a risk of refusal on suitability grounds. There remain some provisions for the grant of permission to stay on the family routes under exceptional circumstances.

Regardless, the rules are now substantially harsher – with far reaching and inflexible mandatory grounds for refusal – and less predictable, as the Home Office will have more discretion to refuse applications on suitability grounds. This may come as a surprise to many, including those already on these routes, and we would recommend taking timely advice if you are concerned about any issues set out in this blog.

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