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/
[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
It may help to get out of the EU for the sake of fair migration and UK fish sticks: http://youtu.be/K3SBMv95BUM
ReplyDeleteHi these rules are effecting my family, ihave non eu spouse which lives in Egypt, we have two kids which are finding separatation difficult and have mental health issues and we are a burden on welfare system, it my husband was here with us he could support us. Please change these rules soon.
ReplyDeleteThis comment has been removed by the author.
ReplyDeleteGood luck for today!
ReplyDeleteWe are affected. My daughter is British but was abducted to North Africa by her father when she was five. Even as an adult she couldn't come home without father's permission. She's now married with 3 children who are also British citizens. They can't come home because her husband is not. Her father was determined to keep her from me. He'd be thrilled that even now she's married and not controlled by him, the British government has taken on the task of screwing up her life.
ReplyDeleteMy family is separate from me missing my kids everyday. Mr. PM what will you do if you are on my side???
ReplyDeleteI am separated from my fiancée and three year old son by this rule. It's not fair not being able to see your family. I have been denied entry to the uk three times since 2012 when Mathew was born.
ReplyDeletehi everyone
ReplyDeleteI'm an Albanian girl married with a British husband. Being six months away from each other and being denied the really expensive visa and stuff we suffer in distance...I've been refused the visa on the excuse we aren't genuine couple for gods sake but no one checked nor interviewed us and they had many many proofs of the opposite. Plus I lived in the uk for three years illegally and when met my husband we spend a year together then decided to come in Albania to get married as we had no right to do so there. After we left together with our own will and I wasn't deported nor in any trouble,they said I didn't show remorse about being illegal in my application. Wasn't remorse enough the fact that I left to make things right?! Now we haven't got the right to be together even if we are ok in our requirements?!? God...I see there are so many people like us...how can our voices be heard guys?!? Why another Europe citizen has every right in the uk but not the English people themselves?!? This is absurd:( please help us....
Regards ,Alice xo