Why is the Home Office separating a British man from his wife when she is still breastfeeding their daughter?

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This week the story of Dan Newton and his family has hit the newspapers. This post explains why the Home Office has acted as it has.

It is not a mistake. Since harsh new rules were introduced in 2012, UK immigration policy does not usually allow British citizens working abroad to return to the UK if they have a foreign spouse. In effect, British citizens are exiled from their own country if they marry abroad.

The Independent reports that Mr Newton is British and is married to Carla Zamora, an Ecuadorian citizen. They have three children together. All the children are British citizens. Mr Newton and his wife lived together previously in the UK for a year and then moved to Abu Dhabi for work. They have lived there together for nearly five years.

Earlier this year Mr Newton’s employment was terminated with three months’ notice and no prior warning, so they decided to return to the UK. This is where their problems began.

The UK immigration rules for the entry of a foreign spouse require the British sponsor to be earning at least £18,600. That is not all, though. The detail of the rules, hidden away in the obscure Appendix FM-SE to the rules, require that for an application to succeed, six months’ evidence of earnings must be presented.

So, the problems facing Mr Newton and his wife were twofold, if they wanted to continue living together as a family:

Not only would Mr Newton have to find employment with a salary of £18,600 before making the move back to the UK, but also
He would have to work in that job for six months before he could sponsor his wife.

On top of that, where would the three British children live? If they came with him to the UK, it would be all but impossible for him to work. So they would also have to remain abroad with Ms Zamora.

So, in order for Mr Newton to comply with Home Office rules and relocate to the UK he would need to come back to the UK, leaving his family behind in Ecuador, where the children have never lived, find a job earning at least £18,600, work at that job for at least six months and then after six months apply for the family to join him in the UK.

[application]

There are some exceptions to these rules but they are not at all clearly defined. Experience suggests that Home Office officials are almost never satisfied that the exceptional criteria are satisfied.

Take the case of Mr Newton, where the Home Office suggests either that the British children relocate to Ecuador or that their mother, who is breastfeeding a ten-month-old baby, leaves the family and relocates alone.

The visa rules were reformed slightly after the Home Office partially lost a case in the Supreme Court earlier this year, but the experience of Mr Newton suggests that little has really changed in practice.

It will be little consolation to Mr Newton to know that he is not alone. I previously advised Mr Gethin Jones on his case, which eventually succeeded after a prolonged separation from his Russian wife. These cases can win on appeal, but it takes months for an appeal to be heard and it can be a stressful and expensive process.