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
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.
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.
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.
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.