When it comes to designing public policy on any issue concerning family life you would think that human rights would be a pretty good place to start.
Unfortunately, this is not the case with new family migration rules introduced by the Home Office in July 2012. Today the All-Party Group on Migration issued a report (PDF) looking at the impact of what happens when politicians refuse to be guided by human rights obligations. The report follows a six month inquiry into what has followed since the Home Office applied stringent new measures on minimum levels of income which people need to demonstrate before they can bring a non-EEA partner or children to settle with them in the UK.
The new rules require the sponsor of the family member to demonstrate that they have been earning an income of at least £18,600 per annum. If they do not meet the threshold through their income, they can make up the difference through considerable cash savings.
For some people – not least a number of Parliamentarians who were surprised that the figure was set at only £18,600 — this might seem a modest level of income. It rises considerably higher in the not unusual case of children being involved. If one non-British child is present then the minimum income level becomes £22,400, and every additional child hikes up that amount by a further £2,400.
These figures were arrived at by calculations carried out by the government’s advisory body, the Migration Advisory Committee, which used a figure based on the point at which households would cease to be eligible for such means-tested social security entitlements as tax credit and council tax and housing benefits. The argument here was that the taxpayer should not be expected to subsidise newly-arrived people who are settling in the UK.
For good measure, the government tried to justify its position with an argument that people with higher-than-average incomes were more likely to integrate successfully into life in the UK. The evidence on this point is poor to non-existent, as the offspring of the cash-strapped generation of Gujarati and Punjabi settlers who arrived in the sixties and after can testify from their own experience of integration and upward social mobility.
The All-Party Parliamentary report shows that the new rules have cut a deep swathe through the applications of thousands of family members wanting to join their sponsors in the towns and cities of Britain, extending well beyond those of modest income into the ranks of comfortably-off middle classes professionals.
The truth is that £18,600 is not a particularly low figure at all, with just under 40 per cent of wage earners earning an income of less than this amount according to the official national wage index. According to critics, its impact falls particularly hard on UK-based women wanting to sponsor a partner, both because of the greater likelihood of low income but also because many will have caring responsibilities for children, which will lower opportunities for earning.
Other groups disadvantaged on the earnings scale include young people just starting out on their careers, ethnic minorities trapped in low pay sectors, people whose earnings potential is limited by disability, and large numbers of people who earn their wages outside London and the South East.
The Parliamentarians conducting the All-Party inquiry, led by the Liberal Democrat spokesperson in the Lords Baroness Sally Hamwee, have also registered their concern that even higher earners may experience huge difficulties in sponsoring family members if their recent earnings have come from employment or businesses based abroad, or from capital investment, property rentals and other sources which require detailed supporting evidence in order to support their applications.
It is not too often that anyone has to get too concerned about the position of quite wealthy migrants, but the rules have created such a combination of uncertainty and bureaucratic hurdles that even the wealthy often do not know how to secure their rights to family reunion.
We are in this position because the government has shown inflexible determination to fence off considerations of human rights and family life from the immigration rules. The Home Secretary, Theresa May, attempted to achieve this task by the sleight-of-hand introduction of a provision into the immigration rules which specifically stated that the regulations on family union had to be regarded by the judiciary as exhaustive of all considerations on human rights as deemed by the high authority of the United Kingdom Parliament.
The claim being made here is that judges might seek their own interpretation of the application of Article 8 of the European Convention on Human Rights, which deals with respect for family life, only at their peril.
As intimidating as this might be to some in the lower echelons of the tribunals and the courts, it is unlikely to be a permanent barrier to senior appellate authorities who form the view that the government has just got it plain wrong. But that bold step might be a long time coming.
The whole sorry situation – poor, confusing rules, creating unneeded hardship for almost 18,000 families a year who find themselves in this situation – could have been avoided if the government had chosen to regard human rights law not as the enemy of good regulation, but as a very useful ally. Yes, there are circumstances in which even Article 8 agrees that considerations of wider public interest might trump a family reunion right, but these ought to be when exceptional facts are present, rather than the mundane matter of humble folk struggling to pay the costs of their daily existence.
REPORT OF THE INQUIRY INTO NEW FAMILY MIGRATION RULES, written by the Migrants’ Rights Network Policy Director Ruth Grove-White on behalf of and in partnership with the All-Party Parliamentary Group on Migration inquiry Committee Baroness Sally Hamwee, Virendra Sharma MP, Viscount Robin Bridgeman, Kate Green MP, Lord Qurban Hussain, Sarah Teather MP, Lord Robin Teverson.