Briefing on UK Family Immigration and the MM Case at the Supreme Court

BRIEFING ON THE ‘MM’ CASE IN THE SUPREME COURT

WHY WE ARE HOPING FOR JUSTICE FOR

THE DIVIDED FAMILIES

                                                                                                                      

Overview

Since 9th July 2012 a minimum income threshold has been imposed on people resident in the UK, including British citizens, who wish to sponsor a non-EEA spouse, partner or child to join them in the UK. As a result of the new rules and how they are applied, thousands of British citizens have been forced apart from their loved ones and children have been separated from a parent and siblings. 

A challenge to the lawfulness of these rules will be coming before the Supreme Court on 22-24 February in the case of MM & Ors v Secretary of State, Home Department. The case is colloquially known as the MM case, referring to the lead claimant, although the hearing will consist of several parties challenging the Home Office on the legality of these rules, including on Article 8 grounds and best interest of children.

The case has previously been heard at the High Court and Court of Appeal^[1], with the High Court ruling that as an overall package, the rules and how they were applied, was too onerous. The Court of Appeal however unanimously ruled that the rules were lawful despite conceding:

“Admittedly there is a total ban on the entry of non-EEA partners where the UK partner cannot reach the required minimum and I appreciate that this ban could be life-long.”^[2]

Families hope the Supreme Court will rule that less intrusive measures would be more appropriate to show that the maintenance requirement can be met, such as:

•             An income threshold no higher than the adult minimum wage for a 40-hour working week

•            Shortfall in earnings allowed to be met by savings even where below £16,000 (currently the first £16,000 of savings are ignored)

•             Allowing for credible and reliable evidence of undertakings of third party support, which under the rules since 2012 has been disregarded

•               Less onerous requirements for the self-employed

•               Reducing the probationary period from five years

Public and the press are welcome to attend the hearing.

Why are the rules a problem?

In 2012, with less than one month’s notice, the British government announced a British citizen or a person settled in the UK must earn a minimum of £18,600 p.a. to sponsor a spouse or a partner to come to the UK. The minimum income required increases to £22,400 if there is one child involved in the application and by a further £2,400 for each additional child. Third-party support was no longer taken into account, nor was the first £16,000 of any savings.  

Since the new rules, campaigners and migrants rights organisations, as well as parliamentarians from across all the main political parties have expressed concerns for the damage caused by the high threshold - higher than the average earnings in a significant proportion of parliamentary constituencies across the UK^[3] - with the impact on families exacerbated by the inflexibility of how the rules are applied.

An inquiry launched by the APPG on Migration in November 2012 to explore the impact of the rules, particularly the new minimum income requirement, assessed over 280 submission of evidence, of which 175 from directly affected families. It found that as a consequence of the new rules, British citizens and permanent residents, including people in full-time employment, have been separated from a non-EEA partner; many are living in exile as they are now prevented from returning home to their own country of nationality; in many cases British children have been indefinitely separated from a non EEA parent.^[4]

The report called for an independent review of the minimum income requirement to assess the impact on family life, the welfare of children, integration and discrimination.

The impact on children

In 2015 research commissioned by the Children's Commissioner and the Joint Council for the Welfare of Immigrants (JCWI) looked at the effect on children separated from a parent because of the rules. It was estimated that “at least 15,000 children have been negatively affected by financial requirements in the three years following implementation of the new Rules.” The research also found that “children are living separated from a parent with reported stress, anxiety and difficulties for the children and their families.” and concluded that “it is likely that this number will continue to rise if the policy remains unchanged.” ^[5]

 Unfairness in the application of the rules

However, it’s not just about what the rules are. It’s also about how they are applied.

The support network for families separated by these rule, BritCits, has come across cases where the application has been refused because:

•            Mistakes have been made by caseworkers arising from the sheer complexity of the rules. 

•            Caseworkers have adopted a tick-box approach, leading to inflexible and rigid decision making, even where the reason for refusal lacks common sense.

•       The Home Office decision-maker has annualised the lowest income payslip covering the evaluation period, even where any dips are the result of illness or absences from work (often to visit the partner). That is, where months 1-5 have been at the required threshold, if in month 6, there is a dip in earnings, the decision maker refuses the application and the sponsor must wait at least another 6 months before reapplying.

•           The rules mandate that caseworkers are not allowed to exercise discretion with regards to the financial requirement, leading to absurd refusals entirely in accordance with the rules, where the income is less than £1 a week below £18,600.

Cases have been seen where debt-free pensioners have been forced to sell property in order to show sufficient cash savings because the rules do not recognise the value of property. Neither is any concession made to people who have no accommodation costs – for example, if their mortgage has been paid off – if the required level of income has not been met. The drastic measure has also been taken by some dual-citizens to renounce their British citizenship and rely on a second EU citizenship, such as Irish, as the only way they could sponsor their partner.

Hearing from the affected families

Some affected families will be attending the hearing over the three days to witness the arguments for themselves, coming from as far as Manchester and Penzance. The first day will consist of a meet-up outside the court from 9:30am, with the families graduating to the courtroom for the hearing to start from about 10:30am.

The hearing and especially the meet-up, represent a very good opportunity to speak first-hand to families in order to garner their views on the rules and the effect on their family.

 Case studies

Case study: Clint. Looking after elderly parents in the UK, living in a mortgage and rent-free house

Clint, a British citizen from Cambridgeshire has a wife and British baby living in the Philippines.  However, as an only child, his elderly parents also need him to live with and look after them in the UK.

As a security guard, Clint earns around £14,000 a year in line with the average salary for his occupation. His parents have indicated that they are more than happy for Clint and his family to live  with them in their mortgage-free home, without any rent or bills to pay.

The rules, however, still mandate that Clint must find an additional £4,600 a year in earnings, despite the fact that his parents are able to provide an undertaking that they will cover his living costs. The rules ignore third party support and the income threshold is designed to factor in £100 a week in rent, even when there is no accommodation expenditure.

Case study: Lisa. Unable to leave the UK because of obligations to children from a previous relationship.

Lisa has a Prohibited Steps Order in place by her ex-husband. The law does not allow her to take their children out of the UK. Her new husband is in Morocco. But, since she lives in a part of England where £18,600 is not feasible, especially for a single parent, she cannot sponsor her husband.

As Lisa’s parents and brother have all passed away, Lisa is forced to rely on welfare benefits.  However had her husband been allowed in the country, his income would boost their household income and allow Lisa’s family to be more independent.

Case study: Ben.  A British citizen caught by different costs of living.

Ben, a British citizen, was a teacher living and working in Indonesia. In his eight years there, he worked his way up to the position of Head Teacher, and then Director of Studies in a successful private language school. 

Ben has a wife and two British children. However, he does not meet the income requirements and according to the rules, his substantial savings of £40,000 is insufficient because the rules ignore the first £16,000 of his savings.

Ben’s view is that, surely someone who can make a successful life in a foreign country would be able to replicate that back home, given familiarity and family support! 

Ben’s parents live in a property which is fully paid off and are also willing for Ben and his family to live there rent-free for as long as they need to. 

With Ben’s Indonesian work visa due to end, he had to return to the UK. His eldest child, a daughter aged six, came to the UK with him as she was already enrolled in a local primary school. His wife will not be able to join them. His youngest child, a son aged two, will stay with his mother. Therefore, not only will husband and wife be separated, but also brother and sister, mother and daughter, and father and son.

 

For further information about the campaign for justice for the families divided by British immigration policy, visit:

BritCits at http://britcits.blogspot.co.uk/

MRN at http://migrantsrights.org.uk

‘We Are Family’ website at http://family.migrantsrights.org.uk/

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^[1] Overview of Court of Appeal judgment by BritCits https://www.scribd.com/doc/231039718/MM-and-Ors-Case-Overview

^[2] §148 of the judgment http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2014/985.html

^[3] Migrants Rights Network, The family Migration Income Threshold: Pricing UK workers out of a family life. June 2014.  Available online at: http://www.migrantsrights.org.uk/files/publications/MRN_Family-Migration_Briefing-June_2014.pdf

^[4] All Party Parliamentary Group on Migration, Report of the Inquiry into new family migration rules. June 2013 Available online at: http://www.appgmigration.org.uk/family-inquiry

^[5] Children’s Commissioner, Skype Families, September 2015. Available online at: http://www.childrenscommissioner.gov.uk/sites/default/files/publications/SkypeFamilies-CCO.pdf