Chapter 16 - Family reunion

The policy on family reunion is currently being revised and the guidance in this chapter is not up to date. Staff should refer to recently issued interim guidance.

16.1	Introduction
16.2	Eligibility of applicants for family reunion
16.3	Eligibility for sponsoring family members
	i)	where sponsor has full refugee status
	ii)	where sponsor has exceptional leave to remain
	iii)	where sponsor has humanitarian protection [Updated]
	iv)	where sponsor has discretionary leave [Updated 17 July 2008]

Chapter 16 - Family reunion

16.1 - Introduction
This instruction gives guidance to ECOs on the consideration of applications made by family members who want to be reunited with a person in the UK who has been:

• recognised as a refugee;
• granted exceptional leave to remain (prior to 1 April 2003);
• granted humanitarian protection;
• granted discretionary leave.

The families of asylum seekers, whose claims have not been determined, do not qualify to join them in the UK for family reunion purposes.

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.

A minor is a child aged under eighteen. A spouse / civil partner is the husband wife of civil partner of a principal applicant.

16.2 - Eligibility of applicants for family reunion
Only pre-existing families are eligible for family reunion i.e. the spouse, civil partner and minor children who formed part of the family unit prior to the time the sponsor fled to seek asylum. Other members of the family (e.g. elderly parents) may be allowed to come to the UK if there are compelling, compassionate circumstances (see below).

The parents and siblings of a minor who has been recognised as a refugee are not entitled to family reunion. Such applications are considered under the criteria above, i.e. there must be compelling, compassionate circumstances in order for the family to be granted entry to the UK. Family reunion may be refused if family members fall within the terms of one of the exclusion clauses in the 1951 UN Convention, which states that an individual.

• has not committed a crime against peace, a war crime or a crime against humanity;
• has not committed a serious non-political crime;
• has not been guilty of acts contrary to the purposes and principles of the United Nations.

16.3 - Eligibility of Sponsoring Family Members
i) Where the sponsor has refugee status (Rules 352A)

Pre-flight spouses, civil partners and children.
If a person has been recognised as a refugee in the UK, family members are normally recognised in line with them. However, it may not always be possible to recognise the family abroad as refugees - e.g. they may have a different nationality to the sponsor or they may not wish to be recognised as refugees. However, if they meet the criteria set out in Paragraph 16.2, they should still be admitted to join the sponsor. The sponsor is not expected to meet the maintenance and accommodation requirements of the Immigration Rules, but the spouse / civil partner and dependants must show an intention to live together permanently.

Endorsements
Entry clearance should be endorsed: Family Reunion to join (sponsor's name): ILE valid to term of passport or 1 year if GV3 used. This should allow sufficient time for the applicant to get a travel document from the Home Office.

Fees
Entry clearance applications from spouses / civil partners and minor children of refugees applying under Paragraph 352 are gratis (Chapter 7.4 (g)refers).

Post-flight spouses, civil partners and children
Spouses / civil partners who married / entered a civil partnership after the sponsor fled to seek asylum must meet the normal spouse / civil partner settlement requirements of the Rules (see Chapter 13.5). It follows therefore that any "post-flight" minor dependants must also qualify under the relevant "dependant" paragraphs of the Rules. In such cases, the normal settlement fee should be charged.

Other dependent relatives
Dependent children over the age of 18 and other dependent relatives (e.g. mother, father, brother, sister, etc) do not qualify for Family Reunion under this section of the Rules. However, if there are compelling compassionate circumstances, which warrant consideration of the application "outside "the Rules, ECOs have discretion to refer applications to the Home Office for a decision on compassionate grounds. However, ECOs must be satisfied that the applicant was genuinely dependent on the sponsor before his flight to seek asylum.

If there are no compelling compassionate circumstances, which warrant a referral to the Home Office, other dependent relatives should be considered under paragraph 317 of the Rules. The usual settlement fees are payable.

Other dependent relatives and over-age children must also meet the requirements of paragraph 317 .

ii) Where the sponsor has exceptional leave to remain (granted prior 1 April 2003)
Family members qualify to join a person granted exceptional leave to remain (ELR) once that person becomes eligible to apply for indefinite leave to remain (ILR), usually after completing four years ELR. ECOs do not have to wait until the sponsor has obtained ILR; applications can be accepted and considered as soon as the sponsor is eligible to apply for ILR.

In cases where the sponsor is not yet eligible for ILR, the spouse, civil partner and minor dependent children may qualify for entry clearance under Home Office policy "outside the Rules", if there are compelling compassionate circumstances.

The requirements for a spouse / civil partner are that:

• The sponsor has completed at least 4 years ELR/ELE;
• The marriage / civil partnership is genuine and subsisting;
• Each of the parties intend to live permanently with the other as his / her spouse or civil partner (see below);
• There will be adequate accommodation for the parties without recourse to public funds in accommodation which they own or occupy exclusively;
• The parties will be able to maintain and accommodate themselves and any dependants adequately without recourse to public funds.

With (c) care should be taken to allow for the fact that in many cases applicants will not have seen the sponsor in recent years in view of the requirement for the sponsor to have completed four years ELR. Refusal on these grounds should only be considered if there is strong evidence to suggest that the intention to live together may be in doubt (e.g. the known existence of a long-term partner of the sponsor).

The requirements for dependent children are the same as those detailed in 14.3 and paragraph 297 of the Rules.

Determining applications
Entry clearance may be issued locally without referral to the Home Office as long as all the requirements above have been met.

Applications may be deferred pending further enquiries with the Evidence and Enquiries Unit if it is considered necessary to establish the facts e.g. the sponsor's status or the claimed relationship to the applicants. Sponsors with ELR/ELE will have completed a detailed Home Office questionnaire when they first sought to remain in the UK. This may contain details of all claimed family members and in cases of doubt can be checked against the information provided by the present applicants.

Those who do not qualify under the policy:
Where it is clear from the outset that an application clearly does not meet the requirements set out above (e.g. where the sponsor has not had ELR/ELE for at least 4 years, the children are over the age of 18 or the applicants are related in some other way to the sponsor), ECOs should advise the applicants that there is no provision in the Rules for the application, that they do not meet the policy criteria and that their applications might not be successful. If, in spite of this advice, the applicants decide to proceed, the fee should be taken and an interview conducted to establish the background and circumstances to the application with a view to determining whether there are compelling compassionate circumstances involved.

Referrals
If you consider there are compelling compassionate circumstances involved and the applicants do not meet the requirements above, you should refer the application to NCC5 in the Home Office for a decision. You should say why the application falls outside the normal criteria and explain clearly the compassionate circumstances to be taken into account.

Refusal
If an applicant does not qualify under the family reunion policy and you do not consider referral appropriate the application should be refused on an APP 200 under paragraph 320(1) of the Rules "…. But I am not satisfied that entry is being sought for a purpose covered by the Immigration Rules". You should ensure the applicants are fully aware of the reasons why entry clearance cannot be issued. The applicants have a full right of appeal.

Endorsement
Entry clearance for successful applicants should be endorsed "to join spouse/CP/parent" with leave to enter given in line with that of the sponsor and you should also add "No Recourse to Public Funds".

Fees
The long- term non-settlement fee should be charged.

iii) Where the sponsor has humanitarian protection [Updated]
Applications for family reunion where the sponsor holds Humanitarian Protection (HP) should be dealt with in the same way as those with ELR/ELE. If the sponsor was granted HP on 30 August 2005 or after this date then the partner and children are entitled to apply for a family reunion before the sponsor has ILR. However, if the sponsor was granted HP before 30 August 2005 then the partner and children have to wait until the sponsor has ILR unless there are compelling and compassionate circumstances. All these cases (ie HP before 30 August 2005) should be referred to NCC2 in any case.

iv) Where the sponsor has discretionary leave.
Applications for family reunion where the sponsor holds Discretionary Leave (DL) should be dealt with in the same way as those with ELR/ELE. However, they can only be considered after the sponsor has obtained ILR, which is usually after 6 years. There is no facility to refer any case to the Home Office for consideration outside the Rules, before the sponsor has obtained ILR.

In all cases, where the sponsor holds either HP or DL, the sponsor is not expected to satisfy the maintenance and accommodation requirements as set out in the Immigration Rules ( paragraph 240 (iii) and (iv) of HC395 ).