Saracens Blog

United By Love, Divided By Law | Immigration

United By Love, Divided By Law | Immigration

 This week, the immigration department review the judgement of Mr Justice Blake in the High Court in July 2013 which could lead to a shake-up of the spouse visa rules.

 They say the best things in life are free but not for British citizens and residents forced to live apart from their spouses and children under UK immigration laws. To invite their family to live with them

Couple holiding hands

United By Love, Divided By Law

permanently in the UK, the Home Office requires sponsors to show a minimum annual income of £18,600. Due to this £18,600 “price tag” many face anguish as they remain parted from their loved ones despite having been a long-term UK resident or even a British citizen.

Migrating to the UK is becoming ever harder with many facing increasing refusal of entry including those seeking asylum in fear for their lives. The UK Border Agency (UKBA) is tightening its intake of foreigners due to the social, political and economic climate and that has had a devastating effect on genuine spouse visa applicants.

Conditions for getting a spouse visa

The Home Office demands that if you are married to someone who is not an EEA citizen with plans to bring them to the UK, they must first attain a certain level of English language. The Home Office also requires proof that you are genuinely married and in a subsisting relationship with no reason for them to believe otherwise.  The Home Office will refuse a spouse entry to the UK if:

  • the Home Office decides that it is in the public’s interest that they be excluded;
  • they are the subject of a deportation order;
  • it is in the public’s interest because they have been sentenced to more than 12 months in prison if the conviction is not yet spent under the Rehabilitation of Offenders Act 1974;
  • it is in the  public’s interest to exclude from the UK because of  character, conduct, associations, or other reasons;
  • they have not attended an interview, provided information, had a medical examination or produced a medical report when asked to do so;
  • there are medical reasons why they should not be allowed to enter the UK;
  • they have  provided false information or documents or not provided relevant information;
  • they have NHS charges of more than £1000 that have not been paid; or
  • they have  not provided a maintenance and accommodation undertaking if requested.

Money talks

The turbulent economic climate has resulted in record breaking numbers of unemployed or low income individuals. To make matters harder, the absolute minimum annual income of £18,600 required to sponsor a spouse to come to the UK increases drastically as and when children are involved.

Discussion on money

Money Talks

On 5th July 2013 Mr Justice Blake, sitting in the High Court delivered a carefully construed judgement that the income threshold for British nationals and those settled in the UK who wished to sponsor spouses or partners and children coming to the UK is ‘unjustified and disproportionate’. Happily-ever-after should not come at such a high price and Mr. Justice Blake found that setting the financial requirement of obtaining a spouse visa at a rate significantly higher than the £13,400 average gross annual wage for many denies a large number of low-wage earners in full time employment the ability to be joined by their non-EEA spouses from abroad, even if they are not claiming benefits.

Mr Justice Blake further commented:

“This [the financial requirement] frustrates the right of refugees and British citizens to live with their chosen partner and found a family unless such modest earnings could be supplemented by any reasonably substantial savings, third party support or the future earnings or the spouse seeking admission. The executive can hardly be heard to say that the minimum adult wage is a manifestly inadequate sum to provide a basic standard of living over the subsistence threshold for a household without dependent children.”

 So have the financial requirements for spouse visas changed?

The rules have not changed… yet. The courts’ judgment was for an individual case under appeal where it was found that in the circumstances the requirement of earning £18,600 per year was disproportionate and onerous, but the judgment did not strike down the rule.

However, it will encourage those who previously thought they had no chance of being allowed to live together with their spouses in the UK, to apply for permission to enter.  After Mr. Justice Blake’s ruling, many spouse visa applications are likely to succeed under Article 8 of the European Convention on Human Rights even if they do not strictly satisfy the requirements of the rules. Spouse visa applications are more likely to be successful if there is reliable ‘third party support’, the UK sponsoring spouse earns above the national minimum wage, there is reliable evidence that the foreign spouse or partner will be working in the UK, or where children are likely to be affected so that is not in their best interests for the foreign spouse to be refused entry.

This case has refueled a long-standing debate regarding the separation of powers between government who create the laws and the judiciary who apply them: who holds ultimate power? The High Court’s decision in the recent case essentially permitted the appellant to transcend the financial requirements set by the Home Office. In response, the Home Office stated the following:

‘We are looking closely at the judgment and its likely impact on the minimum income threshold before we decide how to respond. In the meantime, where an applicant does not meet the minimum income threshold and there is no other reason to refuse it, the application will be put on hold.’

After a long and tense wait, leaving it up until the last day to appeal, the Home Office refuted the judgment claiming that it is not within the courts power to permit such action. Ironically, a Home Office appeal of this decision would technically return the ball to the Supreme Court for the Judiciary to decide.

Despite the High Court asking the Government to look again at the rules and consider whether they represent the right balance between concerns about immigration and the rights of British citizens to live with their families in the UK, the Home Office refuses to allow such a decision to be made leading to further familial breakdown and upheaval where people are being forced to make life-changing decisions.

Heart Break

Spouse Visa requirements continue to be a source of heart break

For the time being, the financial requirement remains at £18,600 and spouse visa requirements continue to be a source of heart break as husbands are unfortunately kept from their wives and children pay an even bigger price. However this recent case and the attention it has attracted brings hope to families across the country that they will someday be able to reunite with their loved ones without enduring financial hardship.

For advice on all your immigration matters please contact us on 020 3588 3500.

Immigration Department

Saracens Solicitors

Photo Credits:

Irina Patrascu
Toban Black
Peter Whelerton

12 Responses to “United By Love, Divided By Law | Immigration”
  1. NicolaJane1989
    08.30.2013

    It’s a very unfortunate and sad matter to be in this situation. However gaining help and advice from immigration solicitors may be able to make the process slightly more bearable as they can give applicants the full picture about what to expect etc

  2. Anas Akkawi
    09.19.2013

    Hi Ferial. I would like to get in touch with you regarding this article and further advise please.

  3. Ali Zaidi
    09.30.2013

    Well written article.

  4. Mauawiyah
    11.01.2013

    Hi.

    I’m
    Mauawiyah Hussan from Pakistan, but now I live in Dudley, near Birmingham. I’m
    here as a student, doing graduation, level 6 in business enterprise from
    ‘University College Birmingham’.

    I’m going to get marry in December and I
    want to call my wife here, what are the possibilities we have?

    Can u explain me briefly .

    Thanks

    Best
    Regards:

    Mauawiyah
    Hussan

  5. Clario
    11.01.2013

    i agree this is written really well, but I still dont agree with the minimum threshold, i have a good job in accounts but live in north east england where salaries are lower. How can you use in the same sentence minimum threshold of £18,600 and the national minimum wage its crazy, got the working time directive of 48 hours per week but at nmw rates you would have to work 56-57 hours a week to meet the min threshold. How can you prove or give evidence that your foreign spouse can work in uk when its takes upto 4 months to process visa. Dont think they should be any difference between where you are from a eu or non eu country, if we go to live in another country we would have to fend for ourselves. The UK government should have done something a long time ago and then they would be no need for such a higher level of earnings threshold. Dont get me wrong i understand why people want to come to the uk and dont have a racist bone in my body but why should people who were born in england have so many problems if they fall in love with someone who doesnt live in eu, im british not european.

  6. Aliya
    01.09.2014

    Well… if the reunion is so urgent, the spouse can always move back to their home country…ticket to the UK is not one way.

  7. SteveO
    01.12.2014

    What really stinks about this law is the arbritary nature of the income threshold. Why £18,600? Where does this number come from? Is that the average income of the average Conservative Voter? Is the government saying that £18,600 is the true income level required to live comfortably in the UK? By that argument surely they need to revise the current minimum wage level which provides a measly annual income of around £12,000. Also this number takes no account of the cost of living of the applicant. As someone pointed out here there is a significant difference between London and other parts of the country. And what about people who are self-employed. They can quite easily manipulate their income lelvel to meet the requirement: I wonder how many small businesss owners are also Conservative party supporters. This law reeks of right wing Tory political manipulation. Apparently Waterloo was not the only battle won on the playing fields of Eton. Guess I’ll be voting Labor at the next election.

  8. Philip Potter
    01.25.2014

    ive had to remortgage to the tune of £30,000 in order to make up the shortfall in my £17,400 salary! Before this, my only outgoings were my utility bills and food, now i have to pay nearly £400 a month for the remortgage!
    Surely the spouse visa application should take a persons outgoings into consideration, i mean i could be earning £60,000 but have £58,000 outgoings but i would satisfy the visa financial requirement!! It doesnt make any sense the way its done now, and is causing a lot of unecessary heartache

  9. Alia sawan
    01.31.2014

    Hi aliya
    My name is alia too i am a british citizen of syrian origin…
    I have to children from a previous maraige 24 , 23 years old i managed to send them to jordan somehow…i need tobring to this country…
    Can you help, do i have any rights to do this… Ihave been living here for 9 years

  10. Gerard Micheál
    02.25.2014

    I am so sick to hear of people coming to our once great country and complain not being able to bring their mother, father, cousin, aunty, uncle, etc due to numerous reasons.

    England is not the same anymore and I have been brought up to live with that but surely not to fill up England full of 3rd world citizens?

    To those who are not happy over here, kindly go elsewhere where you will be happy being surrounded by your uncle1, uncle 2, uncle 3, cousins 1-12, distant cousins, aunty1, aunty 2, etc.

    • Lewis Groves
      04.22.2014

      This article was about spouse visas…….not sure how many people marry with their aunts/uncles! Also England/UK is a nation of immigrants. We have been invaded, raped and occupied for 100 of years by the Romans, French and Nords to name a few. You only have to look at our language to see that. So who are native English? You….Micheal?

      • robert
        05.27.2014

        michael is fucking idiot.. these kind of people only spend their lives living on benefits..just because of people like him Govt here is so strict as if they allow others to come they will do exactly what michael is doing GETTING BENEFITS do fuck all…get this lewis michael is fucking prick who dont know what to say without offending….


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