The Family Migrations Rules as implemented by the Secretary of State for the Home Department and having taken effect from 9 July 2012 have not been warmly welcomed by many. Arguably, these ‘rules’ have severed many family units, with many more family units yet to feel the full force of the blow.
British Citizens, settled persons in the UK and those with limited leave to remain have for years continued to exercise their basic human right; freedom to marry or to enter into relationships as they choose and then to have their spouse or partner reside with them in the UK and to build a family together, working and contributing to the UK economy.
So what has changed?
Previously the Secretary of State had implemented a controversial rule requiring a migrant to seek permission to marry from the Secretary of State in the UK and to be issued with a Certificate of Approval before he or she would be permitted to marry in the UK. This rule was challenged and found by the Court to be in breach of one’s basic human rights and in turn the Rule was abolished.
The latest ‘antic’ on the part of the Secretary of State in an attempt to control those gaining entry or leave to remain on the basis of marriage or being in a relationship is to implement a minimum salary requirement.
From 9 July 2012, any person who is British, settled or with limited leave seeking to marry a foreign national and for that spouse or partner to enter the UK with no dependants must demonstrate that he or she has an annual minimum income of £18,600. For a dependent child and each additional dependent child thereafter there is an increased salary requirement. This puts an increased burden on the UK spouse to be earning an even higher salary.
The concern here is that the average UK employee would not be earning such a figure. Research shows that a high number of UK employees would not meet the salary requirement.
It is understood that the reasoning behind the creation of a minimum salary requirement is to ensure that there is no additional recourse to public funds as a result of the foreign migrant seeking entry or leave to remain in the UK.
That being understood, what the rules fail to do is to cater for those persons who may not meet the minimum income threshold but to this date have never claimed public funds in the entire lives let alone have any intention to claim additional public funds.
One British born national applying for his wife to enter the UK from the Philippines said “I do not earn the minimum income threshold. I have paid all my taxes all my working life. In my entire life I have never claimed UK benefits. I have always supported myself. If that is the case, why am I denied the right to have my wife join me in the UK? I am clearly capable of supporting her. People who do not earn at least £18,600, are they not capable of supporting their families?”
In the House of Commons on 19 June 2013, the impact of the Family Migration Rules was discussed. MPs reported that so many constituents of theirs have been adversely affected by the New Rules. An MP reported that his constituent was not receiving any benefits and was living well within his means, but that the application process did not allow them to reflect his self-sufficiency.
Many individuals who submitted evidence said that they were in employment in the UK and being paid a wage above £12,850 which is recognised as the current level of the national minimum wage. The Migration Observatory at Oxford University reported that 47% of the UK working population would now be unable to meet the income requirement through earnings alone.
We heard from a number of hard-working tax-paying British Citizens who were determined that being effectively forced out of their own country should not be the only way in which they could live with their spouse and children.
What the rule does not do is allow scope to consider the foreign migrant’s ability to seek employment upon entry to the UK and contribute to the financial household. When calculating whether the couple meet the salary requirement, the couple cannot rely upon the foreign migrant’s salary in their home country. Neither can the foreign migrant rely upon a job offer, their previous history of work or their Ability to secure employment upon entry to the UK. This is illogical and suggests there must be another reason for implementing these stringent Rules.
J, British national had served the British Army and had been left disabled through an accident. Despite receiving Disability Living Allowance, he was barely financially surviving himself and thus had no funds to show he would be able to support his wife. His wife, P, a national of Mexico has worked for the Mexican government in the past and had given up work to look after her new born child, J’s son who is a British national. His wife sought to rely upon her past employment experience and ability to secure employment, but was denied the right to do so and the application has been refused as J has insufficient funds to demonstrate he can support his wife. The devastating result is that the family unit of husband, wife and child has been severed. Where is the logic in this? Surely there needs to be flexibility in the Rules!
The consequence is that the government has created a system that is highly inflexible, and incredibly rigid, and that fails by its own narrow criteria in terms of preventing a burden falling on the taxpayer.
Why are the Rules being so rigidly and inflexibly enforced? It is because income probably has nothing to do with it. It is not really about trying to prevent a burden on the taxpayer. It is actually about the Government trying to demonstrate that the government are reducing the number of foreigners coming into the UK. That is driving it. If anything else were driving it, it would be implemented in a far more common-sense way, there would be much more flexibility around it, and it would not have been set at a level to keep out as many people as possible.
It is the citizens and families of our country that need to take a stand against these barbaric rules. Applications need to be made under the Rules and when refused, appeals need to be brought before the Judges of our Land. It is only challenge that will bring out change and lead to possible overturning and abolishment of such cruel rules.
Thaliwal Bridge Solicitors