Family Immigration Rules

Family immigration
rules in the UK

June 2014

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BritCits - Family immigration rules in the UK June 2014

BritCits is a human rights charity formed in response to the attack on British citizens, residents and
refugees with non-EEA family members. Immigration rules in force from 9th July 2012 (the Rules)
are making a mockery of family values, violate the sanctity of marriage in causing the separation of
couples, keep our citizens in exile and force British children unnecessarily into a single-parent
upbringing. They are also leading to British professionals with adult dependant relatives leaving the
UK for Canada, USA, Australia and Singapore all countries which recognise and allow parents to
join their adult children.

BritCits has a growing membership with over 600 registered individuals, each directly affected by the
Rules. There are hundreds more who liaise with us including through our website (with around 7,000
page views a week), Twitter, Facebook, LinkedIn and meetup group and other forms of social media.

Affected individuals often draw comparisons with EEA nationals who do not have to meet the
financial requirements when migrating to the UK to demonstrate the perversity of the rules. British
members frequently question what benefit being British provides if in practical terms they are
prevented from living in their country of nationality.

The knock on effect on British children of affected families is self-evident, with their being denied the
right to a British education and NHS healthcare notwithstanding their entitlement to it, only because
one parent is in a relationship with a non-EEA national and does not earn the minimum income
threshold or cannot demonstrate they have done so for at least six months, or because of the moral
right and responsibility to look after an elderly relative.

We actively engage with other NGOs under the Divided Families umbrella and as part of the
Movement Against Xenophobia. We have held demonstrations, contributed to the APPG report on
migration and spoken at events by other organisations. I believe our members have come to rely on
BritCits as a sanctuary of support. Our members often feel guilt at not being able to meet the
requirements of the Rules and resentment towards a government they believe is no longer listening to
them resulting in the inevitable sense of betrayal.

BritCits is not advocating free borders. We recognise the economic aim in ensuring non-EEA partners
not have recourse to public funds. However given the impact on certain groups more than others we
are firm in our belief that the family immigration rules are not fair, nor accessible, to all. Anyone who
takes the time to hear from people affected by the rules is left in no doubt as to the level of harm they
are causing which in some cases is proving to be irreparable.

We will keep campaigning on the issue of family immigration until rules in place are fair, such that
they no longer violate the sanctity of marriage, have respect for the natural need to look after our
elderly and take into account the best interest of children.

Sonel Mehta
Founding Trustee, BritCits

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Contents
FAMILY IMMIGRATION RULES ................................................................................................................ 4
IMPACT OF THE FAMILY IMMIGRATION RULES ...................................................................................... 5
INTERPRETATION AND APPLICATION OF THE FAMILY IMMIGRATION RULES ........................................ 8
PUBLIC RESPONSE TO THE RULES ......................................................................................................... 14
POLICY RECOMMENDATIONS ............................................................................................................... 16
CONCLUSION ......................................................................................................................................... 17

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FAMILY IMMIGRATION RULES

NON-EEA PARTNERS

1. The Rules mandate a minimum income requirement for British citizens, permanent residents and
refugees seeking to sponsor a non-EEA partner and any dependent children to enter or remain in
the UK.

2. The income requirement of 18,600 is imposed only on the sponsor, be they British. A higher
level applies where the application involves sponsorship of a child in addition to a partner, with an
additional gross income of 3,800 required for the first child sponsored, and an additional 2,400
for each further child. The income requirement for a partner with one child is therefore 22,400,
with two children is 24,800, and with three children is 27,200.

3. The new income requirement is applied at three stages: when the non-EEA partner and any
children are applying for entry clearance (or leave to remain if they are switching into the route in-
country); when applying for further leave to remain; and finally, when applying for settlement.

4. Non-EEA partners who meet all relevant requirements at all three stages may then be eligible to
reach settlement after five years. Prior to being granted settlement in the UK, non-EEA partners
are permitted to work, but are subject to a no-recourse to public funds restriction.

ADULT DEPENDANT RELATIVES

5. Since July 2012, new applications must meet tighter requirements. Relatives must demonstrate
that as a result of age, illness or disability, require long-term personal care to perform everyday
tasks e.g. washing, dressing and cooking and are unable even with the practical and financial help
of the sponsor to obtain the required level of care in the country where they are living because
either it is not available and there is no person in that country who can reasonably provide it or it is
not affordable i.e. this care can only be provided in the UK.

6. In practice the ADR rules are contradictory; if one can satisfy they have the means to look after the
ADR in the UK, the Rules require showing the funds are not enough to pay someone to provide
the care in the parents home country. Indeed, if the sponsor does not have the funds to pay
someone to look after their parent overseas, the application fails for not then having sufficient
funds to look after them in the UK.

7. If the ADR has any friends or family in their home country, the sponsor would need to show the
friends and family, when combined with hired help and any help from the state, is not satisfactory.

8. If the ADR can bathe or feed themselves they do not qualify. This suggests that the Rules are only
applicable to those who are very elderly, or essentially paralysed. Yet even in this condition the
ADR is expected to return to their home country were they to be in the UK, make an application
from there and somehow manage to travel on a plane and navigate the tiny toilets. People in this
condition are not likely to even be able to leave their house let alone travel across the globe.

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IMPACT OF THE FAMILY IMMIGRATION RULES

9. UKs family immigration rules (the Rules) have resulted in British citizens with non-EEA
family members being forced to adopt drastic courses of action, including:

a. Leaving UK to set up home with their non-EEA family member
b. Moving to another EU Member State, with a view to then return to the UK with the non-EEA
family member under the provisions of EEA law, commonly known as Surinder Singh route
c. Self-exile outside the UK/EU even though it might be contrary to the best interests of any
children, including British children, to do so,
d. Enduring prolonged periods of separation until such time as the UK sponsor finds and
maintains employment which meets the financial requirements for the non-EEA partner route,
e. Taking multiple jobs despite the negative impact upon children,
f. Spending lengthy periods of time overseas to look after adult dependant relatives, even where
this means the family unit in the UK is broken up,
g. Not making an application at all,
h. Making applications for non-EEA partners with the hope that an appeal of the inevitable refusal
to the First-tier Tribunal would be successful on Article 8 grounds.

10. The income threshold is so high that even British citizens in longstanding full time employment
may not be able to meet it. It is higher than the national minimum wage (currently at 13,124) and
its those who live outside London and in particular women, people from ethnic minorities,
refugees or the young, who face the most difficulty in meeting the threshold.

11. BritCits is aware a large volume of applications have been put on hold after the High Court ruling
on 5 July 2013. It appears to us that what was supposed to be a temporary hold, rather than
affording the government time to consider the implications of the judgment is in fact to prevent
decision makers applying the law as it stands in light of the High Courts judgment. Indications
from the Home Office suggest that it will place on hold all partner applications until the Courts
have made their ruling, even though this may not be until 2015, if the case is taken to Supreme
Court (also of concern is the amount of taxpayers money spent on litigation austerity et al!).

12. We are unfortunately finding that even cases which meet the income threshold have been placed
on hold pending the finality of this litigation, because of the ECO misunderstanding or
misinterpreting the Rules.

Statistics
13. ONS Statistics reveal a 25% drop in non-EEA partner entry clearance visas issued in the year
ending September 2013 from the previous year.

ONS data for 2012 shows that the refusal rate for
non-EEA partner entry clearance applications rose significantly in 2012, from 19% in Q1 to 46%
in Q4. In Q4 of 2012, 5,758 non-EEA partner entry clearance applications were refused -
approximately 480 refusals per week.

14. BritCits conducted a poll over the period 8 February 2014 to 16 February 2014. We had 532
respondents complete the poll with the results as follows:
a. 83% are British citizens and 15% non-EEA spouse of a British citizen/resident/visa holder,
b. 57% said they had left or were seriously thinking of leaving UK for their family to be together,
c. 24% indicated that they were in exile, as to return to UK would mean breaking up their family,
d. 51% said they have chosen not to submit an application for themselves or their partner, because
they know it would be refused.
e. 26% indicated there were children impacted by these rules.

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15. The decision not to submit an application is an informed one as members share their experience of
the Home Office with others. Members are aware there is no consideration of Article 8; no
discretion applied; no acting in the best interest of children. Additionally, those within the 51%
indicated it makes no sense to submit an application, pay a substantial amount in fees (which over
the course of the application from entry clearance to settlement, under the current fee schedule is in
excess of 3,000 per applicant), only to find their application is on hold or refused. There is the
additional fear that a refusal will militate against granting of leave in subsequent applications even
if that were to be as a family visitor and impact not only future travel to UK but other countries.

16. We are aware Home Office refuses family visit applications, touting them an attempt to
circumvent the rules leaving British sponsors unable to time off work to go see their partner else
run the real risk of failing to meet earn 18,600, but the partner not permitted to even visit them.

Relocation

17. Increasingly, people are exercising their free movement rights to move elsewhere within the EEA
permanently, or to utilise the Surinder Singh route to eventually return home with their family.

18. Moving countries even where temporarily - is not a decision made lightly, given the significant
expense and upheaval caused, especially to children. Where someone has a secure job in the UK,
albeit one that does not pay 18,600, the decision is even more difficult and uncertain for the
financial security of the family. Families with whom we have spoken are concerned about
obtaining work in other countries particularly if they do not speak the language. An increasing
number of people are nevertheless choosing to leave UK, in many cases with a view not to
return. We consistently hear it expressed not being in UK is the only way to maintain family life.

19. The damage the Rules and the way in which they are implemented has caused couples, children
and entire families, and the resentment the Home Offices treatment of families is fostering
towards the government and our nation cannot be quantified.

Reduction in net migration
20. The Home Office appears indifferent to the anguish and suffering caused to families and the
general belief is that the true intention of the Rules is to drive down net migration. However, a
policy aim which by definition necessitates encouraging emigration of citizens is ridiculous.

21. This Childrens Commissioner stated fairness has been sacrificed to achieve one goal and that is
numbers
1
. Lord Avebury stated The Government want to get total net immigration down to
below 100,000 by hook or by crook, and they do not care if in the process they divide thousands of
families by excluding spouses and elderly parents.
2
His view is the Rules were put in place not
for economic reasons but because of the net migration target. Sarah Teather MP has publicly
stated the rules are about driving down numbers based on an arbitrary cap, claiming they fail even
on their own criteria with regards to economic impact on UK
3
.

22. That net migration must be brought down to tens of thousands is a key policy of this government
was further highlighted by James Brokenshire, who in his first tweet as Immigration Minister
referred to continuing to reduce net migration to sustainable levels, begging the question how
can keeping families apart be sustainable.

1
Said at a parliamentary meeting 09.07.13 hosted by the MRN (taken from my notes)
2
Hansard 23 Oct 2012 : Column 189
3
At a parliamentary meeting 09.07.13 hosted by the MRN (taken from my notes)

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23. Disallowing a non-EEA family member the right to live in the UK with their British family often
translates into the departure of the entire family unit from the UK, or indeed, preventing them from
even entering the country. A boon for the net migration target at the cost of our economy, values,
culture and from what I am told by those affected by these rules, confidence and trust placed in
both, our parliamentary and judiciary systems.

24. The Rules are wreaking havoc on family life. Whilst some relocate overseas, others are unable to
return to look after elderly British parents, or provide their British children with access to a British
education and upbringing. Too many have experienced lengthy periods of separation intensified
by the pause on applications impacted by the financial requirements.

Migration Advisory Committee

25. Migration Advisory Committee was asked for recommendations on family immigration for the
purpose of stopping abuse, promoting integration and reducing the burden on the taxpayer.
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MAC in their report recognised family migration rules are not determined by economic factors
alone, but address the economic issue alone as per the scope afforded to them by the government.

26. Home Office misuses the recommendations as 18,600 is the threshold for a couple, and the
amount at which a couple settled in UK cease to be eligible for income-related benefits, therefore
placing the entire burden on just one partner is not in accordance with the recommendation.

27. MAC recommended 18,600 be adjusted for ADR applications suggesting the sponsor earn
between 27,300 p.a. and 45,500, depending on the composition of the household in the UK and
the number of ADR
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. However the government has treated the MAC report like a picknmix treat
and ignored this recommendation entirely.

British Medical Association

28. British Medical Association has warned doctors who have kept NHS going are leaving UK to care
for ageing parents, citing the case of consultant forensic psychiatrist Tejpal Singh who relocated to
Singapore so she could be with her parents. Dr Singh had been actively involved in training
medical students and junior doctors in a shortage specialty where jobs remained unfilled.

29. BMA director of professional activities, Dr Nathanson points out overseas doctors were
aggressively recruited to work for NHS, many of whom believed they would be able to bring
ageing parents to live here when needed. According to Dr Nathanson, [Overseas doctors] have
kept NHS going since it began, they have given enormous service to the country and continue to do
so, adding some UK regions are enormously dependent on doctors from the Indian subcontinent.
A BMA spokesperson has further stated Considering the huge contribution [doctors] make to our
health service, it is incredibly important they are able to have their family around them for their
own wellbeing and to ensure the work they undertake is to the best of their ability.

30. Even Conservative peer John Taylor is aware of the damage caused, stating There is evidence
from the BMA that the NHS has already lost some skilled foreign doctors because they have had to
return overseas in order to care for elderly relatives. If you took away immigrants from the NHS
and many of our public services, they would be in chaos.

4
Stated by the Home Secretary in her foreword to the consultation (Home Office, 2011a)
5
Option number 7 as per pages 61 and 66 of the MAC report
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/257244/family-migration-
route.pdf

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INTERPRETATION AND APPLICATION OF THE FAMILY IMMIGRATION
RULES

31. Through BritCits I have been privy to many refusal letters from which it is clear that a fact-
sensitive approach is not adopted. Home Office and Entry Clearance Officers appear to implement
a tick-box exercise, spending just 6-12 minutes on each application, refusing even if just one of the
specified (and sometimes unspecified) documents is not provided, irrespective of how insignificant
the missing document may be, that it cannot physically exist or that other evidence produced, such
as payslips and proof from the employer, provide the same information. In practice, not only is
there no flexibility nor any common sense put to use, there appears to be a lack of understanding
amongst decision makers as to the Rules and the purpose of the documents.

ARTICLE 8 ECHR / EXERCISE OF DISCRETION

32. I have not seen a grant of leave to enter/remain outside of the Rules pursuant to Article 8, the best
interests of affected children or the exercise of discretion. It is common, however, that such
refusals are overturned by the Tribunal in favour of the applicant.

33. However, appeals are time consuming, expensive, subject to long delays in listings and extremely
stressful for families. They clog up our judicial system and end up being a strain on resources, be it
legal aid or families spending money on legal fees. Ironically, despite the Home Offices claim
that it wants to make sure that those who choose to make a life in the UK can afford to do so, some
members report that trying to earn a higher income has in practice resulted in their finding
themselves worse off financially, through increased childcare costs, maintaining a home in the UK
as well as overseas, along with travel costs for the regular trips some make in order to maintain
their family life. Indeed, some single-parent families have been forced onto benefits which they
otherwise would be disqualified from, with their partner in the country, earning money.

34. Appeals against in-country decisions currently take 6 to 8 months; out-of-country appeals currently
take 9 to 12 months, during which time families are forced to be apart. To make matters worse, the
Home Office frequently appeals First Tier Tribunal decisions. For many therefore, time and costs
associated with appealing even incorrect decisions is prohibitive; thus families are forced to leave
the UK or live apart from their family member, with children often forced into a single parent
upbringing. In our experience, reliance therefore on a judicial system to correct systematic errors
made by decision makers in applying Rules should not be regarded as an appropriate remedy.

35. Our members and the hundreds of others who have been in touch have found the financial
threshold too high and the requirements too onerous and complex. This is in direct contrast to the
governments claim that Appendix FM would add certainty, with fewer incorrect refusals and
appeals. What is clear in practice is that the Rules do not meet their stated intention of a clear
system to ensure fairness, consistency and transparency.
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Our experience indicates that decision
makers are incapable of applying the Rules fairly and correctly. The only consistency we have
seen is in the level of poor decision making with rules which even lawyers have trouble
understanding and decision makers have trouble applying. The examples we have seen
corroborate the fact that decision makers and sometimes even Home Office Presenting Officers
(who appear at appeals) are not able to implement the Rules correctly, because of the inherent
complexity and contradictions.

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Hansard HC, 19 June 2012 : Column 823

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NON-EEA PARTNERS

36. Applications are refused because a P60 is not provided (even where it cannot exist because it is
only issued after the end of the financial year) or where a P60 shows a lower salary less than the
minimum income threshold, because it relates to the previous tax year, not the evaluation period.

37. Where the sponsor or potential sponsor has multiple jobs, is self-employed, has changed position
during the evaluation period or takes leave from work for purposes such as maternity or illness the
complexity is heightened. The Rules penalise sponsors who have a variable income or fall ill, by
annualising the lowest amount, despite the total income being in excess of 18,600.

38. The rigidity of the approach is magnified by forbidding decision makers from exercising discretion
or having flexibility with regard to the financial requirement (paragraph 3.2.1), leading to absurd
refusals entirely in accordance with the Rules: spouse of a sponsor earning 0.69 per week below
the income threshold was refused entry. On appeal at Tribunal the presenting officer suggested the
British sponsor and baby could leave the UK only because they were 0.69 a week short.

39. An immigration solicitor has also advised of contradictions in the rules e.g. paragraph 18(e) of
Appendix FM-SE, (stating non-salaried
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employment is excluded from the calculation of gross
income) and paragraph 9.3.5 and chart on page 14 of the guidance (which confirm both salaried
and non-salaried income can be combined with that from self-employment).

Third Party Support

40. If the intention is to ensure those who wish to live in the UK do so without being a burden on
taxpayers it seems especially bizarre to us that third party support is not allowed for. We refute the
claim that Promises of support from a third party are vulnerable to a change in another persons
circumstances or in the sponsor or applicants relationship with them: that is not the basis for a
sustainable system. (Home Affairs spokesman in HoL, Lord Taylor of Holbeach).

41. There is a strong case to suggest financial support from parents and family members is more
reliable (certainly no less reliable) than income from employment. This is echoed by Lord
Avebury who said in response to Lord Taylor the sponsors parents might suddenly turn against
their son or daughter and the spouse, but equally, the holder of an 18,600 job might be sacked or
become redundant, or develop an incapacitating illness. One can never be absolutely certain the
family will be self-sufficient indefinitely; thats not how life works It is totally unreasonable not
to take [third party support] into account in the Rules.

Forms of finances and investments not permitted by the Rules

42. Disqualification of assets such as property is a huge source of consternation. Pensioners who own
properties outright are usually disqualified from claiming benefits themselves and therefore no
risk to the public purse, yet they cannot count these assets towards showing they have the means
to look after their partner. Such pensioners would be forced to sell the property before their
partner could apply. This perverse approach actually encourages one to endanger their financial
circumstances in order to live with their partner.

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Paragraph 18(e), App FM defines Non-salaried employment as employment paid at an hourly or other rate
(and the number and/or pattern of hours required to be worked may vary), or paid an amount which varies
according to the work undertaken. Salaried employment requires being paid at a minimum fixed rate
(usually annual) and is subject usually to a contractual minimum number of hours to be worked.

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43. The absurdity of the Rules is evident when you consider that a sponsor who earns 18,600 with a
large credit card debt, living in a rental property and no assets at all is entitled to sponsor a non-
EEA partner; however one who earns income at a lower amount but own a mortgage-free
residential property and no debt could not. The bright-line does not take into account a whole set
of factors that vary from case to case, showing the need for individual case assessment.

44. Further highlighting the absurd nature of the Rules is the publicised case of an Australian man
earning 250,000 in Dubai. He owns a 3.5m property in the UK but was refused a visa to live
here with his British wife and children in the UK solely because she is not employed and therefore
not earning 18,600. The man - even disregarding his income and assets is unable to claim
benefits, as being non-EEA he would have no recourse to public funds. His wife though British is
also unable to claim benefits based on the income and assets of her family. This lays false to the
Home Offices claim that changes to the family route are to clamp down on benefits abuse.

45. We have seen no evidence of benefit abuse by non-EEA partners prohibited from recourse to
public funds - the endorsement on their visas adequately prevents access to benefits, let alone
abuse.

Groups disproportionately impacted

46. There are certain groups disproportionately impacted by the financial requirements as shown by
research conducted by Oxford Universitys Migration Observatory which shows the following
would not qualify to bring in a non-EEA partner
- 61% of women
- 32% of men
- 51% in Wales
- 48% in Scotland
- 47% in UK
- 46% in England
- 29% of Londoners
- 58% of those aged between 20 and 40 compared with 35-45% of those aged between 30 and 60.

Female sponsors

47. Female members of BritCits have complained at being forced to delay plans to have children, both
at the entry clearance stage where the onus is solely on them to demonstrate the income threshold
and during the unprecedented long probationary period of five years, where having children could
mean the entire burden falls on their in-country partners. For older members the concern is that
the Rules expose them to the real possibility of losing the opportunity to have children altogether.

48. We have heard reports of miscarriages from stress due to pressure placed on just one person to
meet the threshold. There have even been media reports of a female sponsor admitting to feeling
pressured into having an abortion so as to continue to meet the financial requirements.

49. Female sponsors with young children are forced to return to work fulltime, often taking a fraction
of their statutory maternity leave. The reality is that by the time the partner is in a position to
sponsor the application the parents are prevented from sharing important first moments such as
babys first tooth, first words, first steps; moments that can never return. Returning to work very
soon after childbirth may also impair bonding with the children.

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Children

50. Too many families now have a parent known as Computer mummy or Skype daddy. Sarah,
told us of her two year old daughter screaming excitedly daddy has legs when her father stood up
during a Skype call she had never seen his legs! Andy also made a video of the impact of the
Rules on his two sons and Chinese wife: http://www.youtube.com/watch?v=vhHpaq4KBxY

51. Leah, a British citizen married to an American lives here with their six year old daughter. Her
husband lives in USA. The three have not been together for two years as the family cannot meet
the financial requirements. Leahs daughter has no memory of her fathers touch. Leah is a carer
for her grandfather and therefore cannot leave UK. She juggles volunteering, job hunting, being a
full-time mum and caring for her grandfather. Under the Rules, Leahs husband will never be
admitted to the UK and she cannot leave her grandfather to live with him in the USA.

52. Lisa has a Prohibited Steps Order in place by her ex-husband on their children. She cannot take
them out of the UK, and as she does not earn 18,600 her Moroccan husband is not allowed here.
She is faced with a Sophies Choice situation.

53. Mark Harper stated Our rules and policy on leave outside the rules take into account a childs
best interests...In exceptional cases, those circumstances can be taken into account. Since I have
been doing this job, I have authorised the grant of leave outside the rules to an applicant who, with
their British partner, was unable to meet the income threshold but had serious concerns about the
health and welfare of a child.
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, suggesting ministerial authority is required for the grant of leave
outside the Rules and it is only in exceptional cases best interest of children lead to a grant.

54. Alternatively the best interests of affected children will only lead to a grant of leave outside of the
Rules in cases where the effects of refusal will be unduly harsh according to Lord Taylor (see
HL debate on 4 July 2013): We do not know how many children are affected by the rules. Where
the effects of refusal under the rules would be unjustifiably harsh, there is a provision to grant
leave outside the rules on a case-by-case basis if there are exceptional circumstances.
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55. It is unclear as to how he defines unjustifiably harsh as Emma had the visa for her Moroccan
husband refused despite their having a British baby, Emma being disabled and conditions in
Morocco requiring them to live in a hut with no electricity or running water conditions which
Emma did try and live in for several months but could understandably not adjust to, and certainly
did not want her son growing up in. Despite their application including evidence of all this, the
refusal came with a suggestion that mum and baby move to Morocco.

56. It is unsurprising best interest of children are routinely ignored by decision makers. The entry
clearance guidance set out in the Immigration Directorate Instructions Chapter 8 Section FM 3.1
does not contain information on granting leave even where a childs best interest requires as such.
The policy says If the higher financial requirement and other requirements are met, the child can
be granted leave in line with their migrant parent. If the migrant parent and child are applying
together, and the higher financial requirement and other requirements are not met, all the
applicants will be refused.

57. The Childrens Commissioner for England has also confirmed her view that best interests of
children are not considered as part of the decision-making process, which has particularly
serious consequences for very young children.

8
Hansard 19 Jun 2013 : Column 278WH
9
Hansard 4 July 2013: Column 1406

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British citizens living abroad

58. The income threshold is an insurmountable obstacle for many British citizens abroad wishing to
return home, due to the different cost of living reflected in salary levels.

59. Ben is a British teacher living and working in Indonesia for eight years and been promoted to Head
Teacher then Director of Studies in a successful private language school. He has a wife and two
British children and does not meet satisfy the Rules, with his savings of 40,000 deemed
insufficient. In his view, someone who can make a successful life in a foreign country would be
easily able to replicate that back home, given familiarity and family support. Bens parents are
happy for Ben and his family to live with them there rent-free for as long as needed.

60. With Bens Indonesian work visa due to end, he had to return home. His eldest child, a daughter
aged six, returned with him as she is enrolled in a local primary school. His wife whose visa
application is on hold will not be able to join them. His youngest child, a son aged two, stayed
with his mother. Therefore not only will husband and wife be separated, but brother and sister,
mother and daughter, and father and son.

61. Ros is also a British teacher working and living in Thailand with her same-sex Thai partner and
their two British daughters. Whilst Ros does earn in excess of 18,600 she is unable to return
home with her partner because paragraph 5.2.1 of the guidance requires she have a full time job
paying over 18,600 beginning within three months of her arrival. The Rules irrationally expect
Ros and others like her to find full time employment from overseas, even where in existing jobs
they already earn over the threshold.

62. Ironically Ross only other sibling lives in Tanzania with his non-EEA fiance. He too does not
earn 18,600 and is therefore prevented from returning home. Their parents, both British citizens,
are compelled to travel to Thailand and Tanzania in order to maintain family life. Ros is keen to
return home for the sake of her children and to look after her parents as they get older. She
recognises the best interest of the children requires them to be in the UK not least because
Thailand does not confer parental rights to her same-sex partner in the event of her death. She
cannot do so however because of the Rules.

63. It astounds members who are in this position that in order to return to their own country they must
first endure a lengthy separation from their non-EEA partner, expose British children to a single-
parent upbringing whilst they move back to the UK to find an 18,600 job (not easy in the current
climate), and higher if there are non-British children involved, and then work for a continuous
period of at least six months before being able to apply for entry clearance for their partner
producing a P60 which is only issued once a year as proof of income. This approach, mandated
by the Rules, ignores the damage caused with a parent forced to work long hours to meet the
income threshold whilst juggling childcare and often maintain two homes, and to the affected child
having to endure an upbringing in these circumstances, with just one parent present.

64. The impact on self-employed is even more drastic. British citizen David, a self-employed lawyer,
wishes to return to the UK after seven years with his South African wife. Further to the above
stated difficulties, self-employed people also have to deduct from their income items which are
included in the permitted income for salaried employees. The Rules make no allowance for the
returning citizen to engage in self-employment in the UK. To them, like many others, the family
rules have been amended to align them with the Points Based System; British citizenship and the
right to live in Britain feel worthless.

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Sponsors in the UK

65. I am concerned about the health of those affected by the Rules. As a result of the predicament they
find themselves in and pressure to earn a level of salary often not needed to fund daily life, several
members have been diagnosed with depression. This exacerbates the difficulty in maintaining a
job for the requisite period of time, whilst working increased hours or multiple jobs to the point of
exhaustion, sacrificing family life and paying for increased childcare costs. I have even heard of
suicidal thoughts from those exhausted with the ongoing battle with the Home Office.

66. One of our members, Karen, encountered the ECO not even applying the rules correctly. Karen
works as a support worker for a charity helping vulnerable adults and children. As her salary alone
did not meet the requirement Karen worked overtime, over 65 hours a week with only four days
leave over an eight month period. Her children suffered as she was always at work. Stress led a
miscarriage - which she had to face alone. The ECO refused entry clearance because though the
income level was met, it was done so using overtime payments which according to the ECO
cannot be guaranteed. This is despite section 5.5.5 of Appendix FM stating Overtime,
commission-based pay and bonuses will be counted as income from employment where they have
been received in the 6 or 12 months prior to the date of application as applicable.

ADULT DEPENDANT RELATIVES

67. I have not heard of even one ADR application which Entry Clearance Officers have deemed meets
the criteria under the Rules. This is unsurprising I believe the Rules are impossible to meet and
legal advice given to members is usually such that there is little point in spending 2000 for an
ADR application.

68. Where an individual would otherwise apply knowing they would then need to appeal the refusal,
they are hesitant to do so about lest it render void a visitors visa the ADR may already hold and
put a permanent black mark against the ADR.

69. I have heard of a handful of ADR visas granted by courts, outside of the rules and in accordance
with Article 8, right to family life. However this is a long drawn out process and elderly parents
tend to be wary of engaging in a legal battle against the government.

14

PUBLIC RESPONSE TO THE RULES

70. BritCits has collated hundreds of case studies showing the direct impact on families affected by the
Rules. For every family willing to share their story there are countless others who fear
repercussions in speaking out lest it jeopardise future visa or job applications. These people are
bound by a feeling of victimisation by the very authority which is supposed to represent them.

71. The human cost of the amended rules is unquestionable and demonstrated by the high levels of
media coverage featuring families separated by the Rules. MPs report their immigration casework
load is at the highest levels some have seen. There is a common theme that the Rules are devised
to keep levels of migration to a minimum, separate families, mock the very values we should be
protecting and violate the sanctity of marriage - a sentiment echoed by the head of the Roman
Catholic Church in England and Wales, Archbishop Vincent Nichols, in December 2013.

72. At a House of Lords debate on 4 July 2013 peers across all three of the main political parties
expressed opposition to the Rules, along with a reminder that they are in violation of the
Coalitions election manifesto. Statistics were provided to show it is not unreasonable for British
citizens to meet their partner overseas, given the high propensity for travelling overseas for work
or holidays, and thus these citizens because of these Rules find themselves as marriage-exiles,
with British children unable to have access to a British upbringing and grandparents prevented
from nurturing and spending time with their British grandchildren.

73. Hansard records indicate peers in the House of Lord believe a more appropriate income threshold
for non-EEA partners would be one in line with the national minimum wage without the onerous
evidential requirements attached to it.

74. The All-Party Parliamentary Group on Migrations inquiry report chaired by Baroness Sally
Hamwee was presented to the Immigration Minister and Lord Taylor of Holbeach, though the
findings were not accepted by the Home Office. Indeed Lord Taylors view is that the rules are
having the right impact in respect of [the governments] aims
10
. If so, what is terrifying is that
the impact on families affected by these Rules is intentional and what this government designed to
achieve.

75. Public response also shows severe opposition to Rules. Stephen Bowen, from the British Institute
of Human Rights pointed out that the right of a British child to live in the UK was a constitutional
right and families should not have to face the horrendous choice between self-exile or divided
family. Other opponents of the income threshold on non-EEA partners include Conservative think
tank Bright Blue.

76. The general view from parliamentary debates and meetings suggests to us that the financial
requirements are too onerous and thus unattainable.

77. Lord Parekh commented that we were effectively being told to outsource the well-being of our
parents. Lord Judd spoke of the case for doctors to be allowed to be at their best, therefore
important to allow their family values to apply. He also mentioned that it was important to include
grandparents as part of the family, as this would further allow mums to work, with grandparents
then often undertaking the school run etc. He went on to say that the impact on children were not
being taken into account and that the current rules amounted to cynical neglect.

10
HL debate July 2013.

15

78. According to Lord Avebury these rules have weakened the family community; he was clear that
the reasoning behind the rules was not for economic reasons, just net migration, going further to
label this as the Tories balmiest policy.

79. Sarah Teather has spoken out about the unfairness of these rules in bringing in family members
with an inherent catch 22. If you have too little money, you wont be able to do so. However, if
you have enough money, you will be told that you can pay for care in their home country. The
rules completely ignore the need for families to be together, to provide each other comfort and
support.

80. Sarah has described the rules as a ban masquerading as a rule further stating Almost nobody
will meet those criteria. One lawyer said that he had been thinking through all the possible
scenarios and the only example that he came up with where somebody might meet such criteria
was if they had an elderly dependent relative in Monaco and had enough money here to meet the
first part of the rules, but because care is so expensive in Monaco they would not be able to afford
to pay for it there. That would probably be the only way we would allow such people to come to
the UK. If we are going to have a ban, let us at least be more honest about it.
11

81. Sarah also confirmed that in her view the Rules are based on policy and divorced from real life,
calling them bonkers and divorced from real life, stating they fail even on their criteria with
regards to the economic impact on the UK. In her view the rules are only about driving down
numbers based on an arbitrary cap.
12

82. Kate Green has said the family immigration rules are not saving money; they are not in the interest
of children or families.
13
. Fiona MacTaggart is clear that there should not be a means test on love.

83. Research carried out by MIPEX also indicates that the income threshold under the Rules is only
second in the region to that of Norways, (although income levels in Norway are generally higher),
with higher income thresholds having a disproportionate impact on limiting the number of family
reunions, especially for low-income and vulnerable groups... The OECD also found that for every
extra year a child spends in country of origin instead of country of destination has a negative
impact on language learning and social adjustment. It concluded that family reunion should be
facilitated as soon as possible.

11
19 June 2013, c260WH
http://www.publications.parliament.uk/pa/cm201314/cmhansrd/cm130619/halltext/130619h0001.htm#130619h0001.htm_spnew79
12
9 July 2013, MRN/APPG parliamentary meeting
13
9 July 2013, MRN/APPG parliamentary meeting

16

POLICY RECOMMENDATIONS

84. NON EEA PARTNERS

Income thresholds to reflect minimum wage and regional differences in incomes and cost of living.
Allow for cash and non-cash assets, without excluding the first 16,000 as is the current practice.
Take into consideration the sponsor/applicants expenses and debt in assessing funds required.
Prioritise cases involving kids.
Allow for the potential income of the non-EU spouse.
Those with fluctuating incomes should not be penalised by only the month with the lowest income
counting towards the income threshold. This especially affects sponsors who are self-employed,
and those on maternity or sick leave.
Reduce to 12 months (from 30) the period for which the pre-estimate of financial viability is
assessed.
English language requirements should be such that they allow for the fact that the best place to
learn English is the UK, rather than remote parts of the world with little or no access to English
classes and English examination centres approved by the Home Office.

85. ADULT DEPENDANT RELATIVES

Bond/guarantee as in Australia where $10,000 is held for two years and refunded in full only if the
parent has not claimed any benefits.
In line with countries comparable to the UK, encourage adult dependant relatives to migrate when
they are younger/healthier to encourage integration and allow them to contribute to the
community, whether as childminders, volunteers etc.
Written guarantee or ring fenced assets from the sponsor.
Income threshold as is in place for spouses. It does not make sense that on an income of 80,000
or so, the Rules currently deem it feasible for a British citizen to sponsor a non-EEA partner and
20 of non-EEA children, but not one parent.
Mandate private healthcare insurance for terminal illnesses to reduce reliance on NHS.
Reserve the right of sponsoring parents as that of British citizens only. This is similar to what is in
place in USA. Or indeed, limit it to those not in receipt of benefits, unless there are exceptional
circumstances.
Long-term visa, as in Canada where parents can live with their children for two consecutive years
Quota system, limiting number of non-EU citizens each person can sponsor over specified period.
Rolling 3-5 year visa so that if the British citizens situation changes and they are no longer able
to look after their parents, the visa is not renewed.

Living with your spouse and children is a right, not a privilege.
Living in your country of nationality is also a right, not a privilege.

17

CONCLUSION

86. The individuals who are most affected by these rules are the ones for whom a salary of 18,600 is
just as unattainable as if it were 1million. They tend to be the people we come across in our daily
life to whom we perhaps do not give a second glance; baristas, care and charity workers cleaners,
nurses, security guards, supermarket workers; even ECOs. The Home Office does not seem to
understand that by definition, not all will earn an average or above average salary, though this by
no means makes them less entitled to a family life.

87. Families are an easy target. They are not big companies whose voice politicians hear when
tightening of immigration for skilled migrants proves bad for business. They are not universities
who have the power to lobby the government when the very significant financial threat to our
economy from the governments treatment of international student comes to the fore. Families do
not have limitless funds to fight the Home Office for their rights when so often even a win at
First Tier Tribunal sees the Home Office appealing. Indeed whilst companies refused a visa for an
employee may find a replacement in a British or EEA citizen, or a visa holder, families are not so
easily substituted. It is therefore even more imperative that those in a position of responsibility are
fair in their treatment to this vulnerable group.

88. It must by now, surely, be abundantly clear to the Home Office the devastation the Rules are
causing families, be they composed of British citizens, residents or refugees given the volume of
evidence: the APPG on migration family inquiry, letters written by those affected to their local MP
who in turn raises these concerns with the Home Secretary and Immigration Minister,
demonstrations held outside the Home Office, Justice Blakes ruling, the volume of appeals
clogging up the courts, statistics showing not just a decrease in the number of applications, but that
a smaller proportion of them lead to the issuance of a visa, rise in British citizens exercising treaty
rights to use the Surinder Singh route to return home, increasing number of media reports from
around the country showing the incredulousness of the rules, the Childrens Commissioner citing
long-term damage to children separated from their parents.

89. The Home Office cannot still be ignorant nor unaware of the impact of the Rules. Despite this
they churn out the same trite statements that the rules are working as intended.

90. I am aware that the Home Office asserts these measures have been introduced in furtherance of
social and economic policy and to promote sustainable migration. However, how can keeping
couples, parents and children apart be sustainable? The impact felt by a wide range of people is
just too intrusive. There are many things that policymakers could have thought about
implementing to make the Rules workable and fair, including some set out in Justice Blakes
judgment. These have been ignored with little regard to how disproportionate and disastrous the
consequent interference in family life has been as a general measure.

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