Image: UK immigration law blogger
“I used to think that daddy lived in the phone. And then my mum said, “You know he doesn’t live in the phone, he lives in America”. It was kind of sad because I always thought that he was close to me because he lived in the phone.” Those are the words of a 10 year old boy, separated from his father by UK immigration laws.
“When she was younger, I used to tell my daughter that ‘I’m sending an airplane and then you will come to England”. My wife told my one day, “Don’t say that again”. I asked her why. She said because while she was sleeping an airplane came over our house and my daughter heard it. She woke up and ran out and called: “We are here, we want to go to our dad”. When I called on the phone, she cried and said: “The airplane that you sent just came here and they did not know us, they went away, please tell them that we are here waiting for you.” British father separated from his wife and nine year old daughter
In 2015 I travelled across the UK speaking to families who could not live together because they did not earn £18,600 a year. That is the Minimum Income Requirement (MIR) for British citizens and settled UK residents seeking to sponsor a spouse or partner to come to the UK from outside the European Economic Area. It was introduced in July 2012 as one of the first major acts of Theresa May as Home Secretary. The requirement (which would not be met by 41% of the UK working population) is intended by the Home Office to achieve lower net migration, no matter the consequences.
The Supreme Court’s ruling in the case of MM & Ors v SSHD, which challenged the MIR, gives some hope to these families. Although the judges upheld the legality of the Requirement, they found the rules and official guidance to Home Office decision-makers unlawful in the way they are applied to children. The Joint Council for the Welfare of Immigrants (JCWI) and the Office of the Children’s Commissioner intervened in the case last year to argue that the Family Migration Rules do not adequately safeguard the welfare of the children of affected couples, most of whom are British. An estimated 15,000 children have been affected since these rules came into force. Many have been separated from one of their parents as a result. The judges also ruled that alternative sources of income should be taken into account when considering whether refusing a visa would strike the right balance between “public interest” and the family’s rights to private and family life under Article 8 of the European Convention of Human Rights.
This judgment could help many separated families to finally be granted permission to live together in the UK. Judges in the immigration and asylum tribunals can already apply the ruling when deciding whether the refusal of a visa struck the right balance between the public interest and the rights of the family and we would expect more such cases to succeed on appeal. Depending on how the Secretary of State amends the rules and guidance, we may also see more visas granted on application.
To date, the Children’s Commissioner for England has received scores of letters from families about the devastation the visa rules are causing. I heard these stories first hand: of children who could only interact with their parents on Skype; fathers who had never seen their children; single parents struggling to find adequate employment while also caring for their children full-time because their partner could not get a visa; the thousands of pounds spent on maintaining two separated households, in addition to visa applications, legal fees and plane tickets. I heard directly from parents about the psychological harm the situation had caused their children, who suffered from severe separation anxiety, bed-wetting, eating problems and anger issues that had started after they were separated from their mother or father. I also spoke to the children themselves. These interviews formed part of a report published in September 2015 and submitted as evidence to the Supreme Court.
Last month’s ruling means that the government can no longer ignore children who are being harmed by their drive to reduce migration figures. International and domestic law gives primacy to the rights of children. The judges found that an arbitrarily high and restrictive threshold was being applied, where the best interests of children were only decisive in extreme circumstances, such as when there was no one else to care for them in the UK. This is unlawful. The Secretary of State must now rewrite the Rules and Guidance to caseworkers to ensure that children’s best interests are always considered and given adequate weight in every application. This should result in more cases involving children being successful.
The judges also held that alternative sources of income (such as support from family members or a spouse’s prospective UK earnings) should be considered when the income requirement is not met. Decision-makers must assess whether other sources of ‘credible’ financial support would show that a family would not be a ‘burden’ on the state if allowed to live together in the UK. This could then weigh in favour of granting a visa on the basis of their right to private and family life.
Currently, in the vast majority of cases, only the British or settled partner’s earnings are taken into account, even if they are not the main breadwinner. In some cases, British parents have been forced out of work and onto benefits in order to care for their young children without the support of their partner, who was stranded abroad. This is an illogical and counter-productive consequence of the rigidity of the Rules and allowing consideration of other sources of income may go some way to ensuring this does not occur in future.
The onus is now on the Secretary of State to implement this ruling swiftly and fairly. This includes reconsidering past cases that have been refused. We at JCWI will continue to lobby parliament and to fight for families divided by this law, in order to ensure that as many as possible benefit from this judgment.
“It’s sad to watch my son grow up without a father when it’s preventable, like it’s not a breakdown of a relationship, it’s British law that is stopping British families being together,” said one British mother of a three year old boy separated from his father. Now’s the time to seize on the opportunity of the Supreme Court judgment to make sure no more children are separated from their parents because of a net migration target.