Updates, commentary and advice on immigration and asylum law
New course on problem issues in permanent residence applications available now
Soldiers to be separated from spouses and children by new rules

Soldiers to be separated from spouses and children by new rules

Newly introduced Immigration Rules (Statement of Changes HC 803) due to take effect on 1 December 2013 will end a concession for family members of members of the armed forces, forcing many such families to separate if the soldier is stationed to the UK.

Ending the concession and bringing soldiers into line with other British citizens and foreign nationals subject to the minimum income threshold ignores the unique position of the armed forces. A soldier does not have any control over the country to which he or she is posted or for how long, so the position is not analogous to any other British citizen or foreign national choosing to work abroad or relocate to the UK. Soldiers who are posted abroad may well put down family roots during foreign postings. It ignores the reliance of the armed forces on foreign national soldiers, many of whom of course have families abroad. It also ignores the fact they are putting their lives on the line.

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

These new rules were introduced with a somewhat misleading spin:

New rules have been announced to ensure Armed Forces personnel are not disadvantaged by immigration rules and family members can integrate into society.

Immigration Minister Mark Harper went on rather disingenuously to imply that the rules would be of benefit to soldiers and their families:

I am pleased to announce these changes to the Immigration Rules, which will remove unnecessary differences in the treatment of the dependants of British and Foreign and Commonwealth HM Forces personnel. The Armed Forces community makes a huge contribution to this country and they deserve our respect, support and fair treatment.

In reality the end of the concession means that any ordinary soldier earning less than £18,600 (more if the soldier has any children) will have to leave family behind when stationed in the UK. This may include British children, as it will not in practice be possible for the children to live in the UK unless the foreign national spouse is also admitted.

A normal soldier can expect to earn “at least £17,767”, according the MOD website.

The rules which will now apply to soldiers require the main earner to have income of at least £18,600 before being eligible to sponsor a spouse or partner. If the couple have children the income threshold increases by an additional £3,800 for the first child and £2,400 for each subsequent child. A two child family needs an income of £24,800 otherwise the foreign spouse will not be allowed to enter.

The rules were found to be unlawful when applied to British citizens and refugees in the High Court case of MM & Ors v Secretary of State for the Home Department [2013] EWHC 1900 (Admin) essentially because the income threshold is so far in excess of the national minimum wage (“High Court finds minimum income rules disproportionate and unjustified“). Information has also emerged demonstrating that the new rules have introduced an additional bias against female sponsors (“British women disproportionately affected by new immigration rules“). The Home Office is appealing the MM judgment, however, and all affected decisions are on hold until the case is finally resolved, probably eventually by the Supreme Court in a matter of years rather than months.

Many hard working but low income British citizen parents and children remain separated in the meantime, and ordinary members of the armed forces and their families can now expect to join their ranks.

Colin Yeo
A barrister specialising in UK immigration law at Garden Court Chambers in London, I have been practising in immigration law for 15 years. I am passionate about immigration law and founded and edit the Free Movement immigration law blog.

Not yet a member of Free Movement?

Sign up for as little as £20 plus VAT per month

Join Now

Benefits Include

  • Unlimited access to all articles
  • Access to our forums
  • E-books for free
  • Access to all online training materials
  • Downloadable training certificates
Shares