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A case of tough love

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.

 

[Some additional reporting by Afshaan Hena and FM]

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