Rules separating British children from their parents declared unlawful by the Supreme Court
Landmark Judgment: Government’s Family Migration Rules fail children and declared unlawful by Supreme Court
Today the Supreme Court declared that Government rules on visas for spouses from outside the EEA are unlawful because they fail to take into account the best interests of children. This offers hope to the thousands of families separated by the requirement that British citizens must earn a minimum of £18,600 a year to sponsor a wife, husband or partner to live with them in the UK (the Minimum Income Requirement [MIR]).
- The Supreme Court found that neither the Rules nor the official guidance given by the Home Secretary to Home Office decision makers are sufficient to protect the rights and interests of children. Even though both British and international law requires that the best interests of children be given primary consideration when making immigration decisions, the Rules fail to protect that right. As a result the Court declared the Rules and associated guidance to be unlawful.
- The Court also expressed concern with the current approach to alternative sources of funding. Many of those affected by the income requirement do not quite meet the £18,600 income requirement, but could obtain support from other sources, such as family members, or their spouse’s prospective earnings in the UK (which are often higher than their own). This cannot be taken into account under the Rules. The Court stated that either the Rules or the guidance given to decision makers should be revised, allowing for a wider consideration of other ‘reliable sources of earnings or finance’, to ensure that decisions are compliant with Article 8 of the European Convention on Human Rights (the right to a private and family life). This applies whether or not there are children involved.
- The Court did not overturn the MIR itself, currently set at £18,600 and rising to £22,400 to bring in a spouse and just one child.
Responding to the judgment, Saira Grant, Chief Executive at the Joint Council for the Welfare of Immigrants (JCWI) said:
“This judgment is a real victory for families especially those with children. For five years JCWI has been working with affected families and has been trying to persuade the Government to abandon the Family Migration Rules it introduced in 2012 because they are tearing families apart and significantly harming children. The Supreme Court has now declared this to be the case. These Rules are unlawful as they do not safeguard the best interests of children. The strict requirement that only the sponsor’s personal finances can allow the £18,600 threshold to be met has also been discredited. The Supreme Court has said that alternative funding sources should be taken into account when a person’s right to family life could be breached.
These are significant victories for families up and down the country. This judgment confirms that the Government’s position is now untenable and they must now take immediate steps to protect the welfare of children in accordance with their legal duty.”
With over 40% of the British population earning under £18,600, an estimated 15,000 children, most of them British citizens, are separated from one parent as a result of the MIR. The Joint Council for the Welfare of Immigrants (JCWI) intervened in the case, together with the Office of the Children’s Commissioner of England, to provide evidence of the severe psychological impact of this financial threshold on children separated from their parents.
Tom Snelling, of Freshfields LLP acting for JCWI in the intervention said:
“We are very proud to have acted for the Children’s Commissioner and the Joint Council for the Welfare of Immigrants in this appeal. Our clients’ evidence was specifically referred to by the Supreme Court as illustrating the negative impact of the relevant family migration rules on children, many or even most of whom will be British citizens. The Court unanimously held that these rules failed to give effect to the Secretary of State’s duty to have regard to the need to safeguard and promote the welfare of children when making decisions which affect them. This is a separate duty, which stands alone from any other general human rights considerations.”
The legal challenge brought in February 2016 petitioned the Supreme Court to lower the £18,600 Minimum Income Requirement (MIR) - the figure a British citizen or a permanently settled foreign resident must earn before they can apply for a visa for a spouse who comes from outside the European Economic Area. This increases to £22,400 if the couple wish to also sponsor a child, with an increase of £2,400 for every subsequent child. This has caused hardship and misery for tens of thousands of families.
In light of this judgment the Home Secretary must now take immediate steps to implement the Supreme Court’s ruling. She must amend the Family Migration Rules and accompanying guidance to decision-makers, in order to ensure that the statutory duty to consider children’s best interests is fully reflected in all decisions that concern children.
“I've waited a very long time to find someone I could fall in love with and have a family with. Finally that time has come and instead of enjoying my first year of marriage and the first year of my baby's life, it’s been horrendous, just one stress after another as we've tried to keep our family together. If my husband Carlos was sent back to Ecuador our family would be forced apart and it's just unthinkable that in this day and age the Government could happily split a family up. It's the prospect of my 15 month old baby's loss that breaks my heart more than anything and the heartache it will cause my husband to leave his son and wife. He is our son’s main carer now and the bond sealed a long time ago. Either way our son will be the big loser in all of this - he either loses his birthright to a good education and growing up in a developed country or he loses his father and that is something I cannot believe our Government is willing to support.” Caroline Coombs, Bason Bridge
“This law has really affected all of us as a family and caused a lot of stress. Just before Christmas we received a letter from the Home Office saying my husband Aj, who is from the US, needs to attend an immigration centre in Middlesbrough every 2 weeks but he is liable for detention every time he goes. It's not nice how we have this over us as a family. We have all lived as a family in the UK for the past 3 years and are settled into a routine, we have friends here and this is our home. The threat to deport Aj for up to 10 years is not nice, it's causing us to feel on edge because the Home Office could come and remove Aj at any time. If Aj was removed the effect of this on our son would be devastating! Aj is the closest person to Jayden as I work to support us and Aj takes care of him and spends the most time with him. Jayden cries if Aj is out and can't kiss him goodnight. I think the heartache of his dad being removed would affect Jayden emotionally and possibly mentally longer term.” Lian Papay, South Shields
“My son does not understand why everyone else has a father and his own is just a face on FaceTime that he gets to spend 2 weeks with a year. It is utterly devastating that his dad is absent simply because I currently don't earn enough, it is unfair, discriminatory and we could contribute so much more to society if we were together as a family in the UK.” Precious Depasse, Birmingham
The following are available for comment and interview.
Saira Grant, Chief Executive, JCWI
Chai Patel, Legal & Policy Director, JCWI
Nicola Burgess, Lead Solicitor, JCWI
For all media requests please contact:
Sarah Marcus: 07739 396 280; 0207 553 7469; firstname.lastname@example.org
Charlotte Peel; 0207 553 7457; email@example.com
Journalists wishing to identify people affected by the ruling should also contact JCWI direct on the numbers above.
Notes to editors:
- 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.