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The Migration Institute of Australia (MIA), which is the professional association for Registered Migration Agents, has approached the Australian government to express the unhappiness of its members over the recent increase of 50% which has been added to the visa application charges for onshore and offshore partner visas. This increase on an already expensive application has been justified by the government on the grounds that the increased revenue will fund other ‘whole-of-government policy priorities’.

The increases are very substantial; the offshore partner and prospective marriage visa will now cost A$4,630, up from A$3,085; the onshore partner visa is even more expensive, having gone up from A$4,575 to A$6,865. The National President of the MIA, Angela Chan FMIA has questioned the size of the increase as it is unreasonably high, 50% not reflecting any other change in cost of living, wages or any other relevant index. Concerns are driven by the vulnerability of those being asked to find so much more money to make an application; the clear message being given that family immigration is considered less important; and that the increase has not been made in order to make improvements to the service. Miss Chan makes her case clearly and concisely and awaits the government’s response.

Australians who fall in love with anyone from outside the country now have a further price to pay for the visas needed to bring them into the country. In a recent mid-year budget announcement, a rise in the cost of partner visa applications was announced which took many people by surprise as it was a very big rise – fifty percent. This brings the cost of an offshore provisional or permanent partner visa (subclass 309/100) and a prospective marriage visa (subclass 300) to A$4,627.50, rising from A$3,085. It is even more expensive for anyone applying for a temporary and permanent partner visa onshore (subclass 820 / 801) – this has risen to A$6,865.50 from A$4,575. The rises come into force on 1 January 2015, which gives applicants a very short time in which to make their applications at the old price.

It has been suggested that this increase is to pay for other items on the Department of Immigration and Border Protection (DIBP) budget but Immigration Minister, Scott Morrison, is already on record as saying that these items will be paid for using other funds. Extra costs which the DIBP will have to meet include an extra A$140 million over two years to fund 7,500 places for refugees as part of the enlarged humanitarian programme. They also plan to spend an extra A$32 million on the border protection system, which was upgraded in 2012 with the purchase of the vessel Ocean Shield. It isn’t all spend, though – the new transit centre in Port Moresby, Papua New Guinea, has been put on hold, saving a possible spend of A$96.5 million, with asylum seekers whose applications have failed now being kept in Manus Island as before while they await repatriation.

It is important to take proper care over applications like this as any problem with paperwork, whether it is missing or incomplete in some way, will result in a failed application. This will mean beginning again and going to the back of the queue and also, of course, paying another fee. Anyone who is not quite ready to apply should think carefully as a failed application will cost even more in the long run.

A family with complex nationality status has been at the centre of a new ruling from the European Court of Justice. The father’s dual nationality of British and Irish is no problem – his children have British nationality too. His wife, however, is Colombian and possesses and EU Residence Card which was issued to her in Spain. Previously, she would have had to obtain a visitor’s visa to enter the UK and as this lasts for only six months, there would be an endless round of paperwork to be filled in to allow the family to stay together. The new ruling means that UK visas are no longer required in cases such as this; in fact, they are illegal.

Concerns for the UK

The new ruling will open the floodgates, the UK government is concerned, to large numbers of people who have previously been deterred by having to obtain the necessary documentation to obtain the visa. At a time when the government is tightening up on the whole complex issue of immigration, this is seen by some as a backward step. Issues of security are involved because some EU member countries are lax in their issuing of Residence Cards and insufficient checks are made on applicants. This means that some people will inevitably be able to enter the UK fraudulently with all the problems that that entails. The European Court made the ruling on the basis that freedom of movement is one of the basic human rights enshrined in its charters and this must take precedence over UK concerns.

Other issues

Welcomed by immigration charities and human rights lawyers, and denigrated by those who want to see ever more stringent border controls, the new ruling does nothing for poorer families who are still, in effect, separated by the tough financial legislation affecting their entry to the UK, which were brought in in 2012. At the moment, the UK is bound by the Court of Justice’s decision but it has launched an appeal. No date has been set for this.

3 September 2014

Anyone wishing to make an application for a UK settlement fiancee, partner or spousal visa from Jamaica and certain other Caribbean locations on or after 2 September 2014 will be required to send their documents to UK Visas and Immigration (UKVI) processing centre in Sheffield. This is an important change from the previous procedure for residents of Jamaica, as prior to that date the British High Commission in Kingston was involved in the decision-making process. Some things will not change, however. Passports will still not be sent to Sheffield with applications, but will remain throughout the process of deciding on an application at the British High Commission in Kingston. All other supporting documentation must be sent to the UKVI address directly by the applicant or their sponsor, making it more important than ever that all documents are present and all forms correctly filled in as delays in checking could be much longer. A settlement priority service will still be available and as with other applications, applicant’s passport will remain in Kingston but the process will be expedited, taking on average 3-5 working days. The accepted time windows of 15 working days for non-settlement applications and 60 working days for all applications from those wishing to settle permanently in the UK will still be followed, so no significant delays should be encountered.

3 July 2014

It has recently come to light that many Canadian families are caught in a backlog of spousal and partner sponsorship applications that is currently taking around 11 months. Applicants have always been told to expect a six month wait for approval of phase one of the family immigration process, but this additional five months has caused hardship for a large number of people. During phase one the foreign partner or spouse can legally remain in Canada but not work or access free medical care.

What is meant by phase one and two?

When a partner or spousal sponsorship application is made, whether inside or outside Canada, the immigration process begins which involves checking the Canadian sponsor to make sure that they can support the other party. This is where the backlog has occurred at the moment and because failure of this phase will mean that the family sponsorship application will be unsuccessful, it is not permitted for the foreign partner to work or seek national health care in Canada. When this phase has been passed successfully, the next stage begins and this can be quite lengthy, depending on the country of origin of the foreign spouse. The good thing is that if the foreign partner or spouse is living in Canada at this point, they can work and get free medical assistance while they wait. Some countries can take a long time – currently, for example, Islamabad is taking as long as 32 months to process phase two – and so for those applying from outside Canada the wait and separation from their family can be very long indeed because no entry is allowed while the process is on-going. Families are finding that the whole thing is becoming very stressful, with no right or wrong answer as to whether to apply inside or outside of Canada because each method has its downside. For those caught currently in the backlog there is no recourse but to wait – pulling out will send a person to the back of the queue to begin again.

No explanation for the backlog

The current government of Canada is blaming the Liberal government for the problems, which they say are caused by previous policies. The Conservative government has been in power for eight years, during which time the problem has worsened. Citizenship and Immigration Canada (CIC) encourage everyone applying for a partner or spousal sponsorship visa to do so from outside of Canada but it is difficult for many to comply with this advice, especially where children are involved. In some cases, the foreign spouse is the principal care-giver as they are unable to work outside of the home and it is not always practical to take children out of the country, especially if they are of school age. New legislation regarding dependent children is coming into force later this year, which may in some cases confuse the situation even further.

Some people who have contacted groups set up to help those stuck in the backlog have reported receiving advice suggesting that applying in Canada is not the method of choice. Some have had advice suggesting that applying from outside Canada – which can only be done when the foreign spouse is resident in their country of nationality – is the best way forward without specific detail. It is true that the timescale for phase one, which involves checking the sponsoring Canadian citizen’s or permanent resident’s eligibility, can be very much shorter when the application is made abroad but the second phase, that of checking the foreign spouse for criminal and health issues, can take much longer. In most cases the foreign partner or spouse cannot join their loved one in Canada which causes some families extreme hardship. Others again have been told that ‘There are distinct disadvantages to applying from within Canada, including noticeably longer processing times, lack of status, inability to work and ineligibility for provincial/territorial health insurance coverage.’ But this is too late for those already caught in the current immigration backlog.

25 June 2014

The long-awaited final reading of the Canadian Immigration Bill, also known as the Strengthening Canadian Citizenship Act, or C-24 has now received royal assent and is officially in effect. Criticism has been wide and vociferous, with many experts as well as those who will be affected having a lot to say about what the effect the bill will have for all of those wishing to become Canadian citizens in future.

Legal challenges to the bill and petitions with many thousands of signatures have already surfaced, with more on the way. Some local immigration charities and pressure groups have announced their intention to bring legal action against the government, and Amnesty International is expected to continue to voice their concerns on the matter.

Although the Bill has many clauses which will affect applicants for Canadian citizenship, the one which has attracted the most attention is the increased ability of the government to strip a foreign-born Canadian citizen of that status, in certain circumstances. Ever since Canadian citizenship became an entity over and above colonial level in 1947, there have been powers of revocation but these were fairly weak and not often used. These have now been strengthened and anyone who has lied on their application or misled regarding their intent to reside in Canada may see their citizenship revoked. Those who engage in a serious crime of espionage, terrorism, treason or fighting against the Canadian forces can also be stripped of citizenship. Although the government has been at pains to explain that this power will not be used lightly, it is seen by many as a backdoor way of removing people seen to be undesirable, though they may have done nothing overtly wrong.

The Bill has many clauses, as may be expected for such a major piece of legislation, and all have come in for criticism on some level. One item has a lot of potential impact on students who go to Canada to study and then wish to take out citizenship; previously, time spent studying before an application is made counted towards the residency requirement, meaning that students would have little or no time to wait after graduation before they could be full citizens. This is no longer the case and with limitations put on working options and access to healthcare while the period of residency is being accrued it is feared that students, who have gained important knowledge and will be assets to the country, will have no choice but to return to the country of their birth.

This will be a real ‘brain drain’ and will work in two ways; students will not be able to stay and in future, and they will not apply to Canadian further education institutions, resulting in a very real drop in the standard of graduates and qualified people in the workforce.

One of the main concerns of groups who represent the elderly and the vulnerable is that before the Bill became law, everyone between 18 and 55 had to pass language and education criteria – essentially everyone in the working population. This has now been extended to all applicants and dependents between 14 and 65, creating a real problem for anyone wishing to be joined by children or elderly relatives, both groups which may not have the requisite educational achievements, especially if they come from an emergent nation. The language requirements of Canada cover both English and French and although both are widely spoken, many people seeking to gain Canadian citizenship do not come from countries where they are predominant languages, and where there are educational shortfalls too, they can struggle to meet requirements.

Another change that has attracted a lot of criticism from legal groups is that before C-24 the decision as to who was given Canadian citizenship (with all other requirements met) was in the hands of a neutral judge. If the application was refused, the appeal was heard orally, again by a panel of judges who were deemed neutral by virtue of not being direct government employees. In the wake of the passing of C-24, the decision now rests with a government department, with a team of civil servants now assessing the applications. Any appeals are now decided on the strength of a written report, leading to fears that far fewer applications will be successful. It is estimated that there will be a large shortfall on numbers of ‘new’ Canadian citizens in the next few years, down from the average of 190,000 per year over the previous decade, because of this and all of the other clauses in the Strengthening Canadian Citizenship Act 2014.

10 April 2014

In a recent series of meetings, the Canadian federal government has been considering the possibility that it may become necessary to add language and education requirements for anyone wishing to live in Canada permanently as a sponsored spouse or partner of a Canadian citizen or permanent resident. This proposal was put forward, it is believed, by Immigration Minister Chris Alexander, who has become concerned by the problem of vulnerable women entering the country and being at risk of harm from their husband or extended family. The worry, as expressed by some groups, is that some women would be excluded from the sponsorship programme. Executive Director of the Metro Toronto Chinese & Southeast Asian Legal Clinic, Avvy Go, labelling the suggested requirements as ‘a direct attack on Canada’s family reunification program.’

The new requirements, should they be implemented, will give far better protection to women in particular when they enter the country and will improve their future integration into Canadian society. Unfortunately, many women entering Canada from developing countries have not been given the opportunity to learn either English or French and this could prevent them from joining their spouses in Canada. Furthermore, if these language requirements are never met, it could mean that a family is permanently separated. The news of this added requirement being on the table has not been welcomed by certain groups, who point out that the federal government are also considering legislation that will require Canadian sponsors to prove that they have a minimum income in order to bring their husband, wife or children into the country from overseas. New legislation coming in in August will change the rules on dependent children, reducing the age at which they qualify to eighteen.

As yet there has been no firm denial as to whether language and education requirements are to be introduced, but the Immigration Office has been quoted as saying that ‘the government is forging an excellent record of denouncing all forms of racial hatred, intolerance and unacceptable cultural practices’. The Immigration Minister is currently consulting across the country with local communities in an attempt to assess public opinion on immigration practices, which will be used in the production of a proposed strategic plan to ‘strengthen the integrity of the immigration spousal sponsorship program.’ While the consultations have been on-going, the language and education issue has been raised as an important part of the problems some immigrant families face, although the Immigration Office has been careful to point out that the consultations are simply that – no legislation will be made based on those discussions only.

Canada was shocked last year when an Afghanistan-born woman, Nasira Fazil, was killed by her husband. Many people have expressed the hope that better education and language skills will help such vulnerable women to seek help if they are at risk of domestic violence. However, Debbie Douglas, Executive Director of the Ontario Council of Agencies Serving Immigrants, does not feel that this is necessarily the case, saying ‘…keeping spouses with little English and without a high level of education from Canada is not going to protect immigrant women from violence.’ The Immigration Minister has been criticised because the woman in this case had lived in Canada since childhood, so had adequate language skills to seek help. She in fact had sponsored her husband to live in the country, so the case does not really prove the point very well.

Other new measures are being considered with the aim to stop polygamists entering Canada; these include raising the minimum age for a sponsored spouse from 16 to 18 years old, and introducing self-employment assistance and schemes to help immigrant women set up some kind of business. Avvy Go, who has criticised some of the Immigration Office’s ideas has admitted that some of the proposed changes may be of benefit, but she still maintains that her largest concern was the ‘imposition of the new financial, English language and education requirements.’

Her concerns are that such changes may result in spouses from poor countries with poor educational systems may effectively never be able to live in Canada with their partner. The concern of Mario Bellissimo, chair of the Canadian Bar Association’s immigration law section, is that any new legislation along the lines which appear to be being considered at the moment will remove the focus of Canada’s immigration system away from a focus on family reunification.

15 March 2014

The Canadian government is making a concerted effort to highlight the problem of sham marriages and so-called ‘marriages of convenience’. The Department of Citizenship and Immigration has released a series of videos highlighting the problem and how innocent parties can be duped into such relationships, leaving them both out of pocket and heartbroken.

The videos are the brainchild of Immigration Minister Jason Kenney, who released a statement saying that he has heard many stories of people left devastated by such situations. He was also keen to stress that Canada welcomes newcomers who are willing to work hard and follow the rules, however those trying to gain citizenship through a false marriage, are certainly not welcome.

Touching videos
The handful of videos feature testimony by the victims of sham marriages sharing their experiences and the effect it had on them. The videos are part of Fraud Prevention Month, a program which focuses on a different immigration issue each year. Last year’s campaign concentrated on advising Canadians about using unauthorized immigration consultants.

New immigration laws
Some new related immigration laws have also been introduced recently, one of which requires some immigrant spouses to cohabit with their sponsor for two years or else risk losing their permanent resident status. This rule only applies, however, to those who have been married for under two years and do not have children together at the time their immigration application is made.

The Canadian government says that the new immigration rules were developed over a consultation period of two years, during which the government considered concerns brought forward by many groups who said that victims of domestic violence may be unjustly penalised. However, upon introducing the new rules the government was keen to stress that the conditional permanent resident status for sponsored spouses will be waived in situations where there is evidence of abuse or neglect. The same applies in cases where the Canadian spouse dies.

Nevertheless, some criticism persists, most notably from groups such as the Canadian Council for Refugees who said that the new rules could possibly allow an abusive sponsoring partner to threaten their spouse with the possibility of deportation from Canada.

The newly introduced rules are complaint-based, which means that it’s up to the victim of a fraudulent marriage to report possible irregularities to the Canada Border Services Agency. At the same time, Canadian immigration officers are also taught to detect sham marriages while processing immigration applications.

Sham marriage arrests
In January, the Canada Border Services Agency charged seven individuals in Toronto in connection with a possible sham marriage scheme. The CBSA said the accused had acted as mediators who arranged marriages between Canadian citizens and Chinese nationals, with the Canadian citizens also acting as sponsors. A long-term investigation exposed the marriages as fake and for the sole purpose of letting the in-name-only spouses to gain entry status in Canada. It is believed the mediators were charging between $30,000 and $35,000 each time.

The UK government has announced its intention to raise the cost of visa, nationality and immigration application fees as of 6 April 2014, and 31 March 2014 for some overseas premium services. Although the fee increases are still due to be fully ratified by Parliament, it is fully expected that the rises will go ahead, meaning the cost of many common visa types will go up by 4%. The changes will also see a number of new priority services introduced which will give applicants the option of expediting their applications at an additional cost.

The cost of visa applications for fiancee, unmarried partner and marriage visas, as well as short-term visitor visas, will all be subject to the 4% price rise. The cost of certain other visa types will also be raised, although UK Visas & Immigration (UKVI) say that wider ranging price increases were avoided, due to specific targeting. The UKVI also states that as well as introducing premium services, the rise in processing fees will also enable them to improve customer service.

The additional priority services being introduced include:

• a 3-5 day priority visa service for non-settlement applications for a fee of £100;
• a priority settlement application service which will be priced at £300 (this service currently costs £200);
• a super priority visa service intended to expedite the application process to its swiftest possible time period, for a fixed fee of £600;
• the passport ‘passback service’ will be available at more UKVI offices, subject to a fee of £40 per applicant; finally
• appointments will be available outside of regular office hours subject to a fee of £50 per applicant.

Also subject to the 4% price rise will be the cost of applying for a settlement fiancee, partner and marriage visa from outside the UK. This is set to rise to a cost £885 per applicant, up from the current rate of £851. The cost of a postal further leave to remain (FLR) application will rise to £601, whereas the cost of indefinite leave to remain (ILR) applications for temporary partner and spousal visa holders without dependents will go up to £1093. For any applicants who wish to apply in person making use of the same-day service, this will be subject to a £400 fee per person, additional to the relevant standard fee. Any dependents are required to pay a separate application fee; this fee will be non-refundable, regardless of whether the principal applicant’s application is successful or not.

Since July 2010, more than 1000 spouse and partner visas have been revoked by the Australian government. This is due to such abuses of the immigration system as sham marriages and fake relationships discovered by the Department of Immigration and Border Protection (DIBP) as part of routine checks, including home visits. Although the largest problem was visa holders continuing to reside outside of Australia after attaining a migrant visa under the partnership policy (subclass 309/820), while their sponsoring partners remained in the country.

Although some immigration professionals and lawyers have stated their opinion that the Australian government has reacted with too much severity, it is the opinion of the government that the system has been abused, and a crackdown is necessary. Such fraudulent applications have heaped more pressure on the Australian partner visa system, which is already struggling to cope under a heavy workload. 47,500 migrants used the partner visa system in the last year alone, a figure which is 15,000 higher than 10 years ago. As of June 2013, more than 58,000 applications were still in the pipeline.

On the whole, marriage and partner visas are responsible for approximately 77% of family migration into Australia. One of the main reasons for this is that it is the only remaining “as-of-right” path to immigration. This means that applicants do not need to prove that they have sufficient English language ability, or vocational skills and qualifications.

Although there are a number of reasons given for cancelling the 1000+ Australian partner visas since July 2010, the main one was that the visa holder in question continued to live outside of Australia despite being granted a spouse or partner visa to live in the country. This was the reason behind 809 cancellations. Other reasons given for cancelling the visas included sham marriages and fake relationships, fraudulent or bogus documentation being used, the abuse of temporary visas, and finally, grounds related to the character of the applicant.

One of the most difficult facets of the visa application process facing Australian migration officials is determining whether or not the relationship is genuine and continuing. If Department of Immigration and Border Protection (DIBP) officials suspect that the relationship is not bona fide, or that there are grounds to believe that the application is fraudulent, additional investigations can take place, including home visits. Such inquiries can also lead to the cancellation of existing visas.