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Parliament Committee Report on New Family Rules and Westminster Debate

Parliament Committee Report on New Family Rules and Westminster Debate

United by Love - Divided by Theresa May, JCWI Campaign
United by Love – Divided by Theresa May, JCWI Campaign

Last week, Free Movement posted the fruits of a FoI request disclosing the statistics in relation to partner applications from pre- and post-July 2012.  These figures were then analysed and fair conclusions were drawn in relation to gender discrimination on the basis that female sponsors generally earn less than male ones and therefore would find it more difficult to meet the new income threshold for maintenance.

Last week, also saw the publication of the All-Party Parliamentary Group on Migration’s inquiry entitled “Report of the Inquiry into New Family Migration Rules” June 2013. This is a welcome report, which looked in particular at the new minimum income threshold of £18,600 (with the corresponding rises when children are included in the application) and the new rules concerning adult dependent relatives applying to come to the UK.

The Committee details that it received an impressive level of submissions and evidence from a wide range of participants:  MPs, NGOs, charities, legal organisations, lawyers, business, individuals affected etc…

Following their inquiry, the Committee reached the following 5 findings, again all very welcome:

  • British citizens and permanent residents in the UK, including persons in full-time employment, have been separated from their non-EEA partner and in some cases their children as a result of the new income threshold
  • British citizens and permanent residents have been prevented from returning to the UK with their non-EEA partner and any children as a result of the new income threshold
  • Children, including British children, have been indefinitely separated from a non EEA parent as a result of the new income threshold
  • The current permitted sources in order to meet the income requirement may not fully reflect the resources available to some families (e.g. applicant’s actual or potential income; cash savings only; self-employment income in the current year not being counted; third party support not being allowed etc…)
  • The adult dependent relative visa category appears in effect to have been closed.

The following is also of note:

  • Having heard from a number of UK sponsors in fulltime employment at or above the National Minimum Wage (currently £6.19 per hour, or £12,855 per annum), who reported that they were unable to meet the income requirement, the Committee considered wider evidence which suggests that 47% of the UK working population in 2012 would fail to meet the income level in order to sponsor a non-EEA partner.
  • Other submissions suggested that, because of variations in earnings between regions within the UK, the income requirement has had a particular impact on UK sponsors based outside London and the South East.
  • For the lovers of statistics, there are plenty more to delve into at pp.19-20, p.39 including on the ensuing delay in processing times since the new rules at p.41 of the report
  • Lower-earning sections of the UK working population including women (see blog post last week), young adults, elderly people, and some ethnic minority groups also reported difficulties.

Looking more closely at the issue affecting children, the Committee drew on previous findings by the UK Border Agency Chief Inspector, John Vine, who reported in January 2013 that he had found no evidence that the best interests of children had been referred to specifically in a sample of entry clearance spouse/partner refusals which involved children in the UK.

Specifically with regards to the new rules in relation to adult dependent relatives, the Committee records the frequently heard evidence of a ‘catch 22’ situation, within which UK sponsors, who are fortunate to have the means to support an elderly relative in the UK, are then considered able to do so overseas and therefore would fail to meet the rules.  The Committee also heard that elderly relatives are required to be all but “vegetating” before they can be sponsored to come to the UK.

Of particular note, the British Medical Association, which gave evidence before the Committee, suggested that the NHS has already lost some skilled doctors (both foreign and British it would seem) since July 2012 because they have had to return overseas in order to care for their elderly relative.  The BMA specifically warned of a deterrent effect in the long-term on such international talent as a result.

The Committee’s recommendations are as follows:

Minimum income requirement

1. Government should commission an independent review of the minimum income requirement, drawing on evidence of its impacts since July 2012. The review should aim to establish whether the current level of the income requirement and permitted sources in order to meet it represent an appropriate balance between the different interests in this area.

On the basis of evidence received in this inquiry, we would propose the following specific matters for consideration within the review:

2. The level of the income requirement should be reviewed with a view to minimising any particular impacts on UK sponsors as a result of their region, gender, age or ethnicity.

3. The family migration rules should ensure that children are supported to live with their parents in the UK where their best interests require this.  Decision-makers should ensure that duties to consider the best interests of children are fully discharged when deciding non-EEA partner applications.  Consideration should be given to enabling decision-makers to grant entry clearance where the best interests of children require it.

4. The list of permitted sources of funds should be reviewed to ensure that they fully reflect the resources available to families. In particular:

  • Prospective non-EEA partner earnings should be considered for inclusion in the rules, for example in circumstances where the non-EEA partner has a firm offer of employment or self-employment in the UK, or where there is reasonable expectation that the nonEEA partner will gain employment or self-employment after entering the UK;
  • The rules relating to income from cash savings and from self-employment should be reviewed;
  • Third party support, particularly that provided by a close family member such as a parent, should be considered for inclusion in the rules.

5. The current evidential requirements in Appendix FM-SE should be reviewed, in order to ensure that they are clear and easy for applicants to understand.

6. The Home Office should ensure that full and regular data relating to applications made under the non-EEA partner and adult dependent relatives route is made available, in order to support scrutiny of the impacts of policy changes in this area. This should include adequate disaggregation of family migration data within the International Passenger Survey and Home Office statistics to fully reflect different migrant inflows. The Home Office should make public, where possible, the reasons for refusal of applications by non-EEA partners and adult dependents. The current lack of reliable data on family migrants after their arrival here makes it difficult to study the short and long-term outcomes of family migration to the UK and this should be addressed.

Adult dependents

7. Government should review the rules affecting adult dependents. Consideration should be given to amending the rules to ensure that:

  • Where the UK sponsor can demonstrate their ability to provide full financial support to an adult dependent relative in the UK, or where the relative themselves has the means to financially support themselves, they are able to do so;
  • An adult dependent relative can be eligible for sponsorship where they are in need of support from the UK sponsor, but before they become fully physically dependent.

So all useful information to bolster any pending Article 8 and JR challenges but in the meantime, it remains a frustrating and drawn-out struggle for too many.  All the more frustrating when many of the recommendations above simply amount to reverting to the previous requirements and practices under Part 8 of the Immigration Rules.  This is obviously no criticism of the Committee’s report but rather of the Government’s meddling with the Rules in the first place, which under Part 8 arguably provided a logical and working system for many many years prior to July 2012.

Both the Children’s Commissioner and ILPA have supported the Committee’s findings and recommendations and both have issued their own respective briefings in preparation for a debate in Parliament “Effects of the new family migration rules”, which took place yesterday (Children’s Commissioner’s briefing & ILPA’s).

ILPA reiterates amongst other submissions that the new income threshold gives rise to discrimination on the basis of gender due to average earnings of women in the UK being lower than those of men, more women than men working part-time and maternity leave and pay affecting women’s earnings.  As we have seen, this is then exacerbated in entry clearance cases where only the earnings of the sponsor are taken into account.

In addition, there is also discrimination on the grounds of race since average earnings are lower for persons of certain ethnicities and ILPA cites the following two sources:  European Commission, Gender Pay Gap statistics, United Kingdom and Migration Advisory Committee, 2011, Review of the minimum income requirement for sponsorship under the family migration route.

ILPA repeated its call for the Government to change the rules to:

• Allow those who can demonstrate their ability to provide full financial support to an adult dependent relative in the UK, or where the relative themselves has the means to financially support themselves, to bring their elderly relatives to the UK;

• Make clear that an adult dependent relative need not be physically helpless to meet the requirements of the rules;

• Take into account the prospective earnings of both partners including in circumstances where the non-EEA partner has a firm offer of employment or self-employment in the UK;

• Treat income from self-employment in the same way as income from employment;

• Permit third party support;

• Not require shares etc. to be converted into cash before taking them into account;

• Strip out prescriptive evidential requirements that create a rigid system and focus on what needs to be proven, rather than restricting the means by which proof can be offered. Statement of Changes HC 1039, which gave a small amount of discretion as to evidence and allowed further evidence to be requested, showed that nothing prevents a pragmatic purposive approach to evidence.

More to follow on the debate in Parliament yesterday…

Sarah Pinder

Sarah is a specialist immigration barrister at Mansfield Chambers in London. She also practices in family law and has a particular interest in cross-over issues within the two areas of law. Prior to joining the Bar, Sarah worked for 6 years in the not-for-profit sector as a specialist immigration caseworker.

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