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Monday 29 February 2016
challenge minimum income visa rules in Supreme Court
Financial threshold requirement is denying the right to family life for British citizens and their non-EU partners, justices to hear
Precious Depasse at home in Solihull with her son Marley, whose Tanzania based partner, Max, cannot get a visa to live in the UK. Photograph: Christopher Thomond for the Guardian
The families of UK citizens denied the right to live in Britain because of the minimum income visa requirement for non-EU partners are to challenge the rules in the supreme court on Monday.
They argue that they have been denied the right to a family life by the rules condemned by migrant rights groups and family campaigners, including the children’s commissioner, Anne Longfield, who has said rules are creating “Skype families”.
British citizens must earn more than £18,600 to bring over a non-EU spouse, rising to £22,400 if they have a child who does not have British citizenship, and an additional £2,400 for each subsequent child.
Critics argue that the law, introduced in July 2012, penalises 43% of the UK population and means British citizens in full-time employment on the minimum wage cannot enjoy the right to live with their families in the UK.
The supreme court challenge, brought after the case was dismissed by the court of appeal last year, has three appellants: two of them, Abdul Majid and Shabana Javed, are British and both married to Pakistani nationals; and the third is known as MM, a Lebanese refugee.
Before the court of appeal dismissal, Mr Justice Blake had ruled at the high court that the financial requirements were “a disproportionate interference with a genuine spousal relationship” and suggested a minimum income closer to the minimum wage would be more appropriate.
In September, research by Middlesex University and the charity the Joint Council for the Welfare of Immigrants found about 15,000 British children are either separated from one parent or forced to grow up outside the UK because of the rules.
In response to the the study, Longfield said: “We are not talking about having unrestricted access but we need to put the heart back into this policy and consider the profound impact the rules have on this group of British children and their families.”
Last year, the Conservative thinktank Bright Blue called on the government to change the rules, noting the “significant contribution millions of low-paid Britons make to our economy and society, as well as the value of having families living together in the same country”. It recommended family visas also be granted as long as the British partner had paid income tax for the past two-and-a-half years.
The Home Office said it was determined “family life must not be established here at the taxpayer’s expense.The level of the minimum income threshold reflects the income at which a British family generally ceases to be able to access income-related benefits.”
Sonel Mehta, the founder of the campaign BritCits, which gives support to divided families, said the government was keen to crack down further on family reunification because it was one area where policy was having a real effect on keeping immigration numbers down.
Families are an easy target, they aren’t big business or universities that can do big lobbying to get in students or workers from abroad,” she said. “You can’t replace your husband or wife with a British substitute if the visa is denied.”
More than 40 people from BritCits plan to attend the supreme court hearings this week, many of them who have sons and daughters forced to live abroad or have non-EU spouses cut off from their children. A ruling is not expected for a number of months.
Don Flynn, director of Migrants’ Rights Network, said he hoped at the very least that the supreme court would acknowledge that there should be more flexibility for individual cases.
“In any case I have ever been involved with, the Home Office has not once exercised any discretion. You have to earn over that amount or it will be refused. I would hope the supreme court will acknowledge that, perhaps draw up some guidelines for when that discretion should be exercised in order to make sure the right to a family life is protected,” he said.
‘The bard of Glastonbury is leaving Glastonbury - how many other people at the heart of their local communities have been uprooted?’
Wes White the Bard of Glastonbury who has an American wife Erica Viloa, pictured on Glastonbury Tor. Photograph: Adrian Sherratt for the Guardian
Poet Wes White is the 10th bard of Glastonbury, an honorary position in the Somerset town where he has lived for most of his life, and where he also works part-time in the local library. But within the next few months he will pack up his robes and pen and move to London, as it is the only option he has found to secure a better-paying job that would allow his American wife Erica Viola to join him in the UK.
“The bard of Glastonbury is leaving Glastonbury because of these rules,” he said. “How many other people with roles at the heart of their local communities have been uprooted because of them?
Even if I was full-time, it would be shy of the income threshold. I do think it’s amazing that you can have a role which is paid for by local government and it’s still not enough for you to be with your own family.”
He met Viola on a band forum online 16 years ago, and later in person at a Manic Street Preachers concert in the UK in 2002. The relationship was a slow burner, but they spontaneously agreed to chat on Skype in 2011 and that was the clincher. “It seemed more real, it wasn’t going on in each other’s head,” White said.
It was the same lightning bolt for Viola: “Seeing him again after all those years made everything really intense and I knew that obviously it was going to be tough, but I wanted to be with him and no one else, no matter how many visas or oceans it took.”
The pair got engaged in 2012, but a week later, the rule on minimum income came into force. White said they initially thought they could overcome the difficulties of the threshold, but he struggled to find a better paid job in Glastonbury.
They were married in May 2013, in a vineyard in Viola’s native Nebraska. A couple’s marital status does not have an effect on the income threshold rules but marriage was something they wanted anyway, Viola said. “We’ve already waited 11 years, even if you are going to be 5,000 miles away I still wanted to be your wife.’”
Like many couples in his situation, White said friends and family found it extremely difficult to understand. “People look at you like you’re mad, it’s an alienating experience. My grandma thinks I should just be able to write Erica’s name in my passport and she’ll be here next week.”
“I do feel as though I’m being punished,” Viola said, “and Wes in particular is being punished because he couldn’t find an English wife!”
‘Every time the phone rings, he thinks it’s his dad – he thinks he lives in the computer’
Precious Depasse at home in Solihull with her son Marley, whose Tanzania based partner, Max, cannot get a visa to live in the UK Photograph: Christopher Thomond for the Guardian
Precious Depasse, a student at the School of Oriental and African Studies (Soas) in London, was studying Swahili in her year abroad in Zanzibar when she fell in love with Tanzanian Max el-Amry after a night playing pool in a bar with friends.
The couple now have a son, Marley, but Amry has never been granted permission to come to the UK to visit his 18-month-old son, with their only contact being on holidays to Dubai.
“What’s so frustrating is that I’m young and I haven’t had a chance to start our life together, everything is on hold,” Depasse said. “And I’m treated like this by my own country.”
Depasse wanted to give birth near her family in Solihull, West Midlands, and they initially planned to have Amry, a hotel manager, come to the UK on a visitor’s visa so he could be by his girlfriend’s side. “It was denied twice, they believed he would not return home, despite having a job to return to.
“We found out afterwards that it’s very rare to get a visitor’s visa if you have a partner and child here, they just don’t believe you’ll leave. I gave up on the hope that he would witness his son being born and I gave birth without him.”
Four months later, she brought Marley to meet his dad in Dubai, and the couple have met abroad whenever they can afford to. “My son has only spent a total of four weeks with his father and he’s almost 18 months old,” she said. “[When we’re there] it’s more like a holiday, it’s not real life. We’re in a hotel, going out to eat. I want a normal life, doing normal things together.”
The rules on minimum income came in shortly after the couple had decided to apply for a spousal visa. Depasse is still studying and has a place on the Teach First programme for September, but fears it may not pay enough to meet the minimum. “I’ll have to earn the wage for six months, Marley will be nearly four by then,” she said. “Every time the phone rings, he thinks it’s his dad – he thinks he lives in the computer.
Depasse said she is reluctant to leave the UK because of the close relationship she has with her family and the help they give her. “He’s in a very different situation, his dad has remarried, his mum lives abroad and he’s pretty much by himself. It makes sense to come here,” she said.
“The income rules are a very simplistic way to solve what is quite a small problem of people abusing the rules,” she said. “Some days you feel so angry, other times it’s just really upsetting. I didn’t really have a clue about the rules, you hear so much about immigration and how easy it is for everyone to get into the country and it isn’t true at all, I never thought how big a problem it would be.”
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