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A case of tough love


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In June 2012 human rights organisation Liberty issued a briefing on the proposed changes to the Immigration Rules on spouses and partners and introduction of a minimum income threshold. The old rule required that spouses and partners show they had ‘adequate’ support and would not have recourse to public funds, which meant their income needed to be in excess of income support levels. Liberty had the following to say:

The Government now seeks to replace that law with a far blunter instrument – indeed, the Home Office itself has indicated that in many cases the income threshold will impose a restriction that is higher than that required to protect the public purse.

Those proposed changes are now in force and affect all applications made on or after the 9 July 2012. A sponsor is required to have a minimum gross annual income threshold of £18,600 if the applicant is a spouse, and this threshold increases if there are child dependants.

The new wording of the Rules, which have replaced Rule 281(iv), is as follows:

E-ECP.3.1. The applicant must provide specified evidence, from the sources listed in paragraph E-ECP.3.2., of-

(a) a specified gross annual income of at least-

(i) £18,600; 

(ii) an additional £3,800 for the first child; and

(iii) an additional £2,400 for each additional child; alone or in combination with

(b) specified savings of-

(i) £16,000; and

(ii) additional savings of an amount equivalent to 2.5 times the amount which is the difference between the gross annual income from the sources listed in paragraph E-ECP.3.2.(a)-(d) and the total amount required under paragraph E-ECP.3.1.(a); or

(c) the requirements in paragraph E-ECP.3.3.being met.

In this paragraph “child” means a dependent child of the applicant who is-

(a) under the age of 18 years, or who was under the age of 18 years when they were first granted entry under this route; 24

(b) applying for entry clearance as a dependant of the applicant, or has limited leave to enter or remain in the UK;

(c) not a British Citizen or settled in the UK; and

(d) not an EEA national with a right to be admitted under the Immigration (EEA) Regulations 2006.

E-ECP.3.2. When determining whether the financial requirement in paragraph EECP.3.1.is met only the following sources will be taken into account-

(a) income of the partner from specified employment or self-employment, which, in respect of a partner returning to the UK with the applicant, can include specified employment or self-employment overseas and in the UK;

(b) specified pension income of the applicant and partner;

(c) any specified maternity allowance or bereavement benefit received by the partner in the UK;

(d) other specified income of the applicant and partner; and

(e) specified savings of the applicant and partner.

E-ECP.3.3. The requirements to be met under this paragraph are-

(a) the applicant’s partner must be receiving one or more of the following –

(i) disability living allowance;

(ii) severe disablement allowance;

(iii) industrial injury disablement benefit;

(iv) attendance allowance; or

(v) carer’s allowance; and

(b) the applicant must provide specified evidence that their partner is able to maintain and accommodate themselves, the applicant and any dependants adequately in the UK without recourse to public funds.

The rules at Appendix FM and then supplemented by further rules on specified evidence at Appendix FM-SE. It may not be obvious from the alphabet spaghetti above, but there are several important points to take away from this that will affect a lot of people:

  • The minimum income is £18,600 but more if you have children. Don’t earn enough? You shouldn’t have had children, should you?
  • Only certain sources of income are permitted. Third party support is generally ruled out, for example. Parents happy to support you? Think again!
  • Only certain types of documentary evidence may be produced to prove your income. If you earn a salary, you need to submit six months of personal bank statements, six months of wage slips and a letter from your employer including certain information about you and your employment – which means that in reality you have to have been earning the minimum income for at least six months before you can apply. Don’t like revealing your personal, intimate details and spending habits to nosey immigration officials? Don’t marry a foreigner!
  • If you are self employed the documentary evidence required will make getting a mortgage seem like child’s play.
  • Only the income of the UK-based sponsor will count. This means that if the foreign partner is the main or sole earner, the couple cannot live together in the UK, no matter how much the foreign partner owns. Imagine you are the British wife of a high earning foreign banker. Tough!
  • Unless… there is an alternative to the minimum income if sufficient savings are held. The level of savings is calculated as £16,000 plus 2.5 times the difference between actual income and the minimum income threshold. If you earn £17,600 that sum would therefore be £16,000 plus £2,500, or £18,500. If you earned nothing, like the hypothetical banker’s wife, then the sum would be £62,500. No problem!
  • But… the savings must be held in cash and for a period of six months continuously. Who holds £62,500 in cash? Got oodles of money in stocks and shares? Tough! Cash savings drop by £0.01 below the threshold for one day? Tough!

Liberty’s analysis is surely right. The previous rules had adequate provisions to ensure that spouses and/or children arriving to join their families were not a burden on the tax payer and more importantly that they did not live below a minimum standard of living. Those previous rules laid an emphasis on ensuring that those entering the UK as spouses and child dependants were being supported by sponsors who met the necessary income support threshold for a couple with or without children.

Many of us simply do not understand why the present Government saw it fit to introduce such a high income threshold. It simply does nothing to remedy any deficiency in the previous rules. The new maintenance requirement is far too high a threshold and disproportionately affects sponsors who perhaps simply do not have the ability to earn what many regard as being a newly qualified graduate income of £18,600. This new threshold does not reflect the financial position of those who perhaps have been granted Indefinite Leave to Remain outside of the immigration rules or pursuant to the legacy concession. Many of my clients have been in the UK for many years and have as of recent, been granted ILR under the legacy concession. The UKBA had not provided them with permission to work nor study here in the UK and thus their ability to earn circa £18,600 or more (in the case of child dependants) is simply not a realistic prospect.

The UKBA itself has been compelled to engage with the downturn in the present economic climate by making substantial cut backs by reducing tribunal Presenting Officer numbers and even engaging “baby” barristers to conduct some of their advocacy in an attempt to field more bodies on behalf of the Secretary of State in court and to perhaps improve performance ratings. So why is it that the UKBA consider it both reasonable and proportionate to levy such a high new maintenance threshold, in a time when jobs are sparse and UK graduates with huge student debts, are finding it difficult to earn circa £18,000?

The Joint Council for the Welfare of Immigrants (JCWI) have produced a document outlining the proposed changes, with a title that really does best convey the impact of the changes: United by Love/Divided by Law. It includes helpful case studies to bring to life these impacts. For example, at page 19 we find the case of Noel and Jody. Noel is a civil servant earning £18,000 per year and will not be able to have his wife join him because he is £600 below the minimum requirement.

This is a highly recommended read as it goes through the changes and details the impact of the changes. In respect of the introduction of the threshold, there can only be one outcome: the painful and prolonged separation of families which prior to the 9 July 2012 would have not only met the rules but ensured they were not reliant on public funds.

Those wishing to have family members join them in the UK will have to look to ensuring they have sufficient savings if they are below the minimum income threshold or consider whether they fall within one of the few exceptions to the new Rules.

The fight will go on. The new maintenance requirement will result in a series of challenges at the Administrative Court and beyond but in the meantime many families will be kept apart. For now the Home Office line is that if you earn less than £18,600 and you love a foreigner enough to marry them you can bugger off and live in their country.

Additional reporting by Afshaan Hena and Colin Yeo.

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22 Responses

  1. Has {fm} been given parliamenatry approval yet?…..or else we could be back to the ‘Pankina question’ …..how does it relate with the recent UKSC in Alvi {2012} then?…….True see no other way otherthan incresead Judicial Review challenges, shame we still live in a country where all forms of discriminations are outlawed unless discrimation according to Nationalities. To me its much more than ‘nationality discrimination’, it’s pure dirrect race discrimination, just wish i could prove it.

  2. This looks a very sensible law to me. Good to see the Government introducing some resonable immigration laws at last.

  3. “This new threshold does not reflect the financial position of those who perhaps have been granted Indefinite Leave to Remain outside of the immigration rules or pursuant to the legacy concession. Many of my clients have been in the UK for many years and have as of recent, been granted ILR under the legacy concession. The UKBA had not provided them with permission to work nor study here in the UK and thus their ability to earn circa £18,600 or more (in the case of child dependants) is simply not a realistic prospect.”

    No doubt many of your clients came as “visitors” or “students,” lied about their intentions, and managed to evade the UKBA long enough to accumulate sufficient residency to apply for ILR outside the rules. As someone who had to shell out thousands of pounds and navigate the UK immigration mess in a legal way, I find it hard to have any sympathy in their case.

  4. Very valid point Apuleius.

    It’s a shame honest people like yourself are penalised when others are getting away with playing the system- no doubt aided by some who post on this site and take the moral high ground!

  5. I wonder how those who claim the new rules are ‘sensible’ would feel if they affected them personally. Do not forget that they apply also to British citizens who want to marry foreigners.
    The legacy cases stem largely from UKBA’s inability (I am being generous here by not using a stronger term) to operate fair and efficient policies.
    I do not understand why people think that those who do not have ‘thousands of pounds’ to shell out and who stay in the UK for years as destitute due to being unable to work should be denied their human rights. To preempt your question: no, they can’t just go back to their countries of origin. For some return would be unsafe while others may have established a family/private life here, despite their precarious situation. Anyway, I won’t even attempt to cover everything in a short blog comment; remember that immigration is not the ‘black and white’ matter the Daily Mail presents it as.

  6. One wonders if some of the commentators above have been in a position where they have to remain separated from family members or leave the UK? Or as European Citizen said, whether they realise that these rules apply to everyone, not just those who were granted under legacy. And if the HO is so totally incompetent or indeed stupid as to be unable to remove those who could safely be removed and then goes on to lose track of tens or hundreds of thousands of people, then don’t blame those people. And as European Citizen also said, many can’t go back and/or have been destitute as a result of their situation.

    ” The new maintenance requirement will result in a series of challenges at the Administrative Court and beyond”
    Good, these rules are nasty and undemocratic in a way that only Denmark matches in Europe. Other strict countries like Austria and the Netherlands are easy by comparison. Hopefully someone will have the time and the nerves for the procedure and take this to the Strasbourg court. The actions of the UK gov’t show that it is time a precedent is needed saying that what counts is a genuine marriage, dangerous violent criminals being the only exception.

  7. “I do not understand why people think that those who do not have ‘thousands of pounds’ to shell out and who stay in the UK for years as destitute due to being unable to work should be denied their human rights”

    It is a human right to be treated equally and fairly before the law. It is a human responsibility to follow the law and represent your intentions honestly. Unless you’re trying to argue that UK immigration policy is basically a proxy to alleviate social inequality across the world by bringing people here, I fail to understand why cheating a sovereign nation’s laws should attract no negative consequences. And what do you say to those who did follow the immigration law and did everything asked of them, often at great financial (not to say personal) cost?

  8. There is one thing that I have learnt in life – everything/anything is reasonable until it affects me. How sensible or reasonable would it seem to you if you fall in love with a lady from Morocco, Russia or Thailand or anybody else?

  9. The legacy cases consisted of unresolved asylum applications as part of a backlog accumulated by UKBA over a decade so I do not see how your argument about ‘cheating’ applies to them. I do not condone any failure to observe the law. Sometimes migration is not a matter of personal choice but a question of life and death. Sleeping on friends’ floors or in railway stations is a reality for many people who are simply too afraid to go back. Instead of feeling resentment towards them, I suggest you appreciate what you have.
    It is not about alleviating social inequality, it is about treating everyone as human beings. And, as I said before, most of these cases are the result of UKBA’s own inability to deal with cases fairly, quickly and efficiently.

  10. The Tribunal’s headnote in SG (child of polygamous marriage) Nepal [2012] UKUT 00265(IAC) states ‘The proportionality balance in such cases is a fact sensitive one rather than determined by the rules’ all be it in a separate context.

    This will surely be the route forward for many appeals?

    Freemovement, wrote an article a few months back on whether reducing immigration can ever be a legitimate aim for the purposes of human rights law and qualified rights such as Article 8(2).

    This, to my mind, lies at the centre of any Administrative Court challenge to the Rules. However, I’m now confused on this fundamental point of human rights law following the decision in Secretary of State for the Home Department v Hayat (Pakistan) [2012] EWCA Civ 1054 (31 July 2012).

    Hayat [2012] has been held a victory of some sort (for those subject to immigration control, at least). However, the Court at paragraph 76 seems to reject the argument that any legitimate aim beyond mantaining a “good, consistent system of immigration control” needs to be indentified in any individual case as this would make the Secretary of State’s job ever so difficult and arduous.

    So, poor public authority which already charges extortionate application fees and has an annual budget!!!???


  11. My husband is American, and I am a British Citizen. He was here under the old visa rules, but had to leave because his fathers cancer had become very aggressive. I haven’t recieved any type of benefits since I was 18, which was almost 10 years ago. I’ve been married for 8 years. It is now impossible for me to stay with my family and be with my husband in the UK. I worked for years at a minimum wage job – customer service to keep a small business working as best it could. To me that’s a valuable job, but clearly to the UK government, any job that you are doing for less than 18k isn’t worth it. Do they really think that it costs 9K a year to look after my husband? It doesn’t. i’m the only one of my high school friends that does not have children, that is not claiming benefits in one form or another. I don’t want a hand out. I want to live with my family in the country that I used to be so proud of.

  12. What I have a problem with is the fact that people from the EU community can come into the UK without so much as showing they have money, jobs, or savings, and get to claim for all sorts of ‘public funds’…Why is it that I as aBritish subject born here and worked all my life for this country is not allowed to fall in love and marry someone from outside my country or the EU and have them with me because supposedly I am too poor to do this? Where is the fairness? EU people can marry whom they choose and live here in the UK without blinking an eye. We, the British born citizens, are being deprived of this liberty. Also this figure that they have plucked out of the air £18,600…..if this is the minimum we need to live on why are the minimum wages set so low in the first place?

    1. Well, I came here working as a waiter, then had to put up with idiots on the lines as technical support, always paying taxes, yup, I was unemployed for 3 months(unlike so many british who make a living from it)
      Now I pay £900 a month for NI and Income tax so that so many british can continue free life styles. Also don’t get me started on Somalis and this is not about racism.
      Most EU come here to study and to learn english because it enables them to find better jobs outside. I stayed because the area I work in required my skills and I wanted to work in my area.
      Also as EU you aren’t entitled anything unless you contributed before.
      Also, there are far more british in Europe than european in Britain, and should Britain start chasing EU Nationals, the repercussions would be so severe that it would be screwed.
      So Sandra Salhi, wherever you may come from, Non eu nationals can come in as long as they have jobs, I am happy about basic english tests because nobody wants ghettos, it’s about integration. My team is 3 indians, 1 chinese, 1 french, me Portuguese, 1 Irish, 4 english and we are all happy and functional.

  13. Many of my client’s don’t believe me when I tell them that even I (an accredited legal representative) don’t currently earn enough to sponsor anyone on the new scheme! But I suppose OnlyMe and co. would say it serves me right for daring to help these sponging foreign b*st*rds. Ahem.

    Also, go Afshaan!

  14. Far more people who are stuck in legacy are actually those who have been victim to UKBA incompetence – rather than “evading the UKBA for long enough…”, most clients I am aware of who are stuck in the legacy have been waiting for years for a decision on a legitimatly submitted application. The worst recent example was a guy who applied for ELR in 2002, and he only just got granted leave this year! Is that his fault?

  15. Listen guys, the last time I put the Tory mentality in a nutshell that, ‘they do not believe anyone else to be human enough apart from themselves, hence their collective disgust for Human Rights’ there was some party political bleating from a few mealy mouthed Tory cohorts. Now, after reading the excellent analysis by FM and a comprehensive overview from JCWI, I would make an addition to the previous nutshell, i.e. ultimately the new Tory policies in family immigration matters are the true personification of a contemptuously legislated apartheid for racial segregation.

    Any normal person, apart from the Tory-fied UKBA crowd, can quite clearly see that these policies are specifically designed to permanently keep the ‘coloured immigrants’ family’s apart, there is no other rational explanation for it; the so-called immigration control is a public deception; keep Britain White is the intention – that is your blessed Toryism in disguise with not the slightest historical change in policy from the old days of Sandy Duncan, Enoch Powell to the present day Cameronites piggy-backed by the opportunist Liberal Democrats at the expense of devaluation of their inherent Liberal values.

    Yes, some white indigenous people are equally affected, but they are very few and far between and as such their inclusion somewhat deceptively reduces the draconian impact of these policies. Mrs. May should not been blind to considering the simple economic fact that, amidst the brutal Tory imposed economic constraints, austerity and public cuts, resulting in thousand upon thousands of job losses, bankruptcies, repossessions and factory closures, how on earth a Pakistani restaurant waiter or an African and West Indian security guard are expected to earn anywhere near the threshold of £18,600 when, just before 9th July their mediocre income of £10/11,000 was sufficient for the same purpose? Where is the rational human logic in even perceiving such a normal earning trend to be suddenly being capable of transforming into a burdensome legislated requirement of proof of income? The simple fact is, the Tory mentality consistently fails to see beyond its own cocooned privileges thereby mistakenly believing as if everybody else is equally as privileged.

  16. We now live in a country where one part of society has a right that another part of society doesn’t have.

    We live under apartheid!

  17. I have started my own campaign against the new immigration rules that the British government have brought into effect that will prevent a family life, unless you earn a minimum of £18,600 or £22,400 if there is a child involved, a further £2,400 will be required for each further child.
    We cannot allow the government to take away our rights like this, these rules have been deemed unlawful by the courts, yet Theresa May, Home Secretary, still wished to pursue these rules for her own individual political benefit.
    Please “like” my Facebook page and let’s take action against these harsh rules: http://www.facebook.com/​UniteFamiliesFightForLove?ref=t​s

    Please “register” on my forum http://ufffl.forumotion.co.uk/ for the latest developments that we are planning in order to overturn these rules, we will not tolerate these rules.

    Please be patient while we build and strengthen our campaign, thank you!!