The Joint Council for the Welfare of Immigrants (JCWI) has condemned today's changes to family immigration rules as ‘inadequate’ and calls on ministers to carry out a complete review of its ‘fundamentally flawed’ policy.
The changes were forced on the Government by a Supreme Court ruling, delivered in February, which said that it must take into account alternative sources of income and stop failing to live up to its duty towards children. Minimum income requirement (MIR) rules require a British citizen to earn at least £18,600 before they are eligible to apply for their non-EEA spouse to join them in the UK and consequently often leave children separated from their parents.
Responding to the government’s failure to properly implement the MM case recommendations, Saira Grant, Chief Executive, Joint Council for the Welfare of Immigrants, said:
“The changes announced today mean that the government has failed to take the bold action needed to fix family migration. Instead, it has done the absolute bare minimum to help British people who want to live in the same country as the person they love. After JCWI’s intervention in the Supreme Court the Government has been forced to consider the best interests of children in all cases, but it continues to duck the broader questions.
“JCWI welcomed the MM case recommendations as a starting point for wholesale reform of the family migration system. Five months on, it’s highly disappointing to see that the Government has made inadequate changes that amount to mere tinkering at the margins.
“The Government must look again and take this opportunity to fix a fundamentally flawed system that causes so much stress and harm to British couples and British children. People don’t deserve to be split up from their children or partner on the basis of how much they earn.”
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NOTES TO EDITORS
JCWI calls upon the Government to act immediately to ensure that these Rules are implemented correctly. It must:
- Allow families with applications on hold to submit further evidence as to why it would not be proportionate to refuse their applications.
- Allow families who have been refused applications in the past to make further representations without charge and have their application reconsidered.
- Allow all applicants in future an opportunity to submit further evidence if they do not meet the rules, before the Secretary of State refuses their application.
- Make clear on future application forms that this additional evidence can be submitted (and in what format) so that families can understand this complex procedure.
The government’s changes today mean that:
- From now on decision makers will have to consider the best interests of any affected children as a primary consideration before refusing a spousal visa application. This is the point that JCWI and the Office of the Children’s Commissioner successfully argued in our intervention to the Supreme Court.
- If a sponsor does not earn £18,600 and there are exceptional circumstances, the decision maker must consider alternative sources of income, such as from the foreign spouse, or other family members.
- In any case where there are exceptional circumstances decision makers will have to consider whether it would be unjustifiably harsh to refuse an application.
- Joint Council for the Welfare of Immigrants (JCWI) is an independent national charity established in 1967 which campaigns for justice in immigration, nationality and refugee law and policy.
- JCWI intervened in the Supreme Court challenge along with the Office of the Children’s Commissioner (OCC). The organisations argued that children separated or at risk of separation from a parent and/or other family members as a result of the Minimum Income Requirement of the Family Migration Rules are innocent victims and that in fact the MIR puts the Home Secretary in breach of her duty (under the Borders, Citizenship and Immigration Act 2009) to consider the ‘best interests’ of children in all immigration decisions.
- The intervention was based on the report ‘Family Friendly? The impact on children of the Family Migration Rules: a review of the financial requirements’ (https://www.jcwi.org.uk/sites/jcwi/files/CCO-Family-Friendly-Report-090915.pdf ) commissioned by the OCC and written by JCWI and Middlesex University (August 2015)
- The Court directly referred to the Family Friendly? report which sets out the types of families that are detrimentally effected by these rules. These include British citizens who have been living and working abroad, have married or formed stable relationships there, and now wish to return to their home country. Many of these relationships will have been formed before the new Rules were introduced or even publicly proposed. They also include couples who formed their relationships before the changes in the Rules were introduced and who had every expectation that the foreign partner would be allowed to come here. Of particular concern is the impact upon the children of these couples, many or even most of whom will be British citizens themselves. [para 80 Supreme Court judgment.]
- The original challenge to the Family Migration Rules was made by a Lebanese refugee with permanent status referred to as MM, along with two British citizens in 2013 at the High Court. Mr Justice Blake's judgement described the Rules as ‘onerous and unjustified’ and urged the Home Secretary to adjust them (http://www.bbc.co.uk/news/uk-23198144). The Home Secretary appealed and the Court of Appeal ruled in her favour in 2014, confirming the legality of the Minimum Income Requirement. The appellants then appealed to the Supreme Court. https://www.theguardian.com/uk-news/2016/feb/22/absurd-minimum-income-visa-rules-forcing-uk-citizens-into-exile-court-told)
- JCWI, along with the OCC, intervened in the Supreme Court arguing:
- The Home Secretary was in breach of her legal duty to give primary consideration to the best interests of children as required under British law (Section 55 of the Borders, Citizenship and Immigration Act 2009) and Article 3 of the UN Convention on the Rights of the Child.
- The rules did not comply with Article 8 (right to a private and family life) of the European Convention on Human Rights (ECHR) because they are irrational, excessive and disproportionate.
- The rules violate Article 14 (right to non-discrimination) of the ECHR because they have a disproportionate effect on women and certain ethnic minority groups ability to access Article 8 rights under the ECHR.
- 41% of British citizens working as employees in 2015 earned less than the minimum income threshold and would therefore not be eligible to sponsor a non-EU spouse/ partner.
- These rules disproportionately affect women 55% of whom earn less that £18,600 compared to 27% of men. These rules also put young people at a disadvantage as 53% of 20-29 year olds would not meet the minimum income requirement as opposed to 36% of people aged 46-60 years old. Finally, those living outside of London are at a disadvantage with, on average, 43% earning less than the income threshold, compared to 27% of Londoners.