Home AffairsLetter from Mark Harper MP, Minister for Immigration, to the Chair of the Committee, 16 January 2013

Thank you for your letter of 9 January following my evidence session in front of the Committee on 18 December. Please find the additional information requested below.

Legacy Cases

1. You will be aware that I assumed office as the Immigration Minister on 4 September 2012. I was advised of the issues surrounding the UK Border Agency’s tracing of cases in the controlled archive in a submission on 2 October 2012.

Changes to the Immigration Rules

2. There are two separate aspects to this issue. Applications made before 9 July 2012 under Part 8 (family members) of the Immigration Rules, which were not decided by that date, remain subject to the rules under which the initial application was made.

However, under the previous arrangements, the Government’s view of the correct balance to be struck in applying Article 8 to family cases was not properly reflected in the rules, but was subject to a separate consideration. Very often applicants would apply in the knowledge that they would not qualify under the rules but expecting the Government to grant a form of discretionary leave on the basis of a broader assessment of family life. Or, alternatively, they would apply solely for an Article 8 consideration. In that sense, there used to be two parallel processes: one under the published family rules and another seeking a discretionary grant on the grounds of Article 8.

From 9 July 2012, when the Government set out its detailed interpretation of Article 8 in the immigration system, this position changed. The two processes were drawn together, with the rules in Appendix FM setting out the Government’s view of how the qualified right to respect for family life under Article 8 should operate in the great majority of cases. For applications made before 9 July who failed to meet the old rules (ie Part 8) or who did not apply for leave under the old rules but instead sought leave outside the rules on the basis of family life, the case will be decided according to the new rules (ie Appendix FM). This is logical, since the Government cannot argue that it holds two valid interpretations of Article 8 at once: one in Appendix FM and a separate view in guidance covering pre-9 July discretionary decisions.

Since 9 July, applicants and caseworkers alike have had confidence that any assessment of family life will be undertaken within the framework of the new family rules set out in Appendix FM. This is without prejudice to those applicants who applied before the rules change, and who were seeking to rely upon the pre-existing rules rather than a discretionary assessment of Article 8.

Sponsor Notifications

3. The UK Border Agency has already taken steps to deal with the outstanding sponsor notifications and from the start of the next financial year I expect it to be dealing with all notifications within four weeks of receipt. I will of course continue to monitor the Agency’s performance in this area. 

January 2013

Prepared 25th March 2013