Controversial immigration rules are dividing opinion — and families

Thousands of families stand to be torn apart as a power struggle rages on between the UK government and courts.

In the latest conflict between the coalition and the judges, over 15,000 families face being separated by government policy.

The Home Office is appealing this summer’s High Court judgment, which found new immigration rules on partners and children joining their families in the UK breach basic human rights.

Last month (5 July), three families won a judicial review of new immigration rules which required British citizens and refugees to earn at least £18,600 if they want to bring a non-European partner into the UK, rising to £22,400 if a partner and child are coming, plus £2,400 for each additional child.

Justice Blake ruled that the new earnings threshold was not unlawful] in itself, but it was a ‘disproportionate’ interference with the right to a family life at the level it was set, especially as it was combined with other onerous rules. For example, the requirement that applicants must have at least £16,000 in the bank if they want to use savings to supplement an income less than the £18,600 threshold.

Justice Blake suggested a lower threshold of £13,500, which would be less likely to penalise young couples, and he also proposed taking into account the earnings of the incoming partner, who may well be the main breadwinner.

The ruling culminated months of campaigning by separated families, human rights lawyers and MPs and came hot on the tails of a June report by the All-Party Parliamentary Group on Migration, which called for an independent review of the rules in light of “emerging evidence about what must be the unintended consequences” - including, it said, the cost to the public purse.

Yet the government remains adamant that the new rules are fair and economically sound and has launched an appeal against the High Court ruling. Earlier this month, House of Lords whip Lord Taylor of Holbeach sent a letter to peers defending the measures.

Lord Taylor insisted that a Middlesex University study which found that preventing 17,800 partners coming to work in the UK would cost £850million in lost economic activity over 10 years, did not include costs such as welfare, health and education.  Lord Taylor argued that the net benefit of the income threshold barrier to family immigration will be £660m to the taxpayer over the next decade.

“The aims of the income threshold are to ensure that family migrants are supported at a reasonable level so that they do not become a burden on the taxpayer and they can participate sufficiently in everyday life to facilitate their integration in British society,” maintained Lord Taylor. 

What is clear is that thousands of husbands, wives, fathers and mothers will suffer separation from their families under such rules.

The £18,600 figure came from advice by the UK Border Agency’s Migration Advisory Committee. Their November 2011 report suggested that 45 per cent of the 37,600 visas issued to migrants joining their spouse or partner that year would fail to meet an £18,600 income threshold. But the Committee warned that its advice was based on economic considerations alone, with no reference to wider legal, social or moral issues. Furthermore, it noted that its calculations relied on various assumptions and generalisations.

So just how arbitrary is the £18,600 income barrier to bring a loved one who may be earning more than you to the UK? It’s certainly far above the £12,875 minimum wage earnings for a 40 hour week.

But as usual, we have a government that says it is determined not to let the courts dictate public policy — even though the High Court’s judicial review in July was not overturning Home Office rules, just suggesting a few sensible amendments to make these family rules more workable and help comply with human rights.

The government’s intransigence suggests it fears discrimination or human rights claims if it loses the appeal.

Meanwhile the cost of these wranglings add up, as does the human cost of couples divided and children growing up not knowing their fathers.

Once again human rights, in this case the right to a family life, is the battle ground for an ugly squabble between government and the courts.

The Home Office is appealing this summer’s High Court judgment on the new immigration rules. Photo: Getty

Vanessa Ganguin is a partner at Laura Devine Solicitors. She is an immigration specialist and heads the firm’s human rights and appeals team.

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"We repealed, then forgot": the long shadow of Section 28 homophobia

Why are deeply conservative views about the "promotion" of homosexuality still being reiterated to Scottish school pupils? 

Grim stories of LGBTI children being bullied in school are all too common. But one which emerged over the weekend garnered particular attention - because of the echoes of the infamous Section 28, nearly two decades after it was scrapped.

A 16-year-old pupil of a West Lothian school, who does not wish to be named, told Pink News that staff asked him to remove his small rainbow pride badge because, though they had "no problem" with his sexuality, it was not appropriate to "promote it" in school. It's a blast from the past - the rules against "promoting" homosexuality were repealed in 2000 in Scotland, but the long legacy of Section 28 seems hard to shake off. 

The local authority responsible said in a statement that non-school related badges are not permitted on uniforms, and says it is "committed to equal rights for LGBT people". 

The small badge depicted a rainbow-striped heart, which the pupil said he had brought back from the Edinburgh Pride march the previous weekend. He reportedly "no longer feels comfortable going to school", and said homophobia from staff members felt "much more scar[y] than when I encountered the same from other pupils". 

At a time when four Scottish party leaders are gay, and the new Westminster parliament included a record number of LGBTQ MPs, the political world is making progress in promoting equality. But education, it seems, has not kept up. According to research from LGBT rights campaigners Stonewall, 40 per cent of LGBT pupils across the UK reported being taught nothing about LGBT issues at school. Among trans students, 44 per cent said school staff didn’t know what "trans" even means.

The need for teacher training and curriculum reform is at the top of campaigners' agendas. "We're disappointed but not surprised by this example," says Jordan Daly, the co-founder of Time for Inclusive Education [TIE]. His grassroots campaign focuses on making politicians and wider society aware of the reality LGBTI school students in Scotland face. "We're in schools on a monthly basis, so we know this is by no means an isolated incident." 

Studies have repeatedly shown a startling level of self-harm and mental illness reported by LGBTI school students. Trans students are particularly at risk. In 2015, Daly and colleagues began a tour of schools. Shocking stories included one in which a teacher singled out a trans pupils for ridicule in front of the class. More commonly, though, staff told them the same story: we just don't know what we're allowed to say about gay relationships. 

This is the point, according to Daly - retraining, or rather the lack of it. For some of those teachers trained during the 1980s and 1990s, when Section 28 prevented local authorities from "promoting homosexuality", confusion still reigns about what they can and cannot teach - or even mention in front of their pupils. 

The infamous clause was specific in its homophobia: the "acceptability of homosexuality as a pretended family relationship" could not be mentioned in schools. But it's been 17 years since the clause was repealed in Scotland - indeed, it was one of the very first acts of the new Scottish Parliament (the rest of the UK followed suit three years later). Why are we still hearing this archaic language? 

"We repealed, we clapped and cheered, and then we just forgot," Daly says. After the bitter campaign in Scotland, in which an alliance of churches led by millionaire businessman Brian Souter poured money into "Keeping the Clause", the government was pleased with its victory, which seemed to establish Holyrood as a progressive political space early on in the life of the parliament. But without updating the curriculum or retraining teaching staff, Daly argues, it left a "massive vacuum" of uncertainty. 

The Stonewall research suggests a similar confusion is likely across the UK. Daly doesn't believe the situation in Scotland is notably worse than in England, and disputes the oft-cited allegation that the issue is somehow worse in Scotland's denominational schools. Homophobia may be "wrapped up in the language of religious belief" in certain schools, he says, but it's "just as much of a problem elsewhere. The TIE campaign doesn't have different strategies for different schools." 

After initial disappointments - their thousands-strong petition to change the curriculum was thrown out by parliament in 2016 - the campaign has won the support of leaders such as Nicola Sturgeon and Kezia Dugdale, and recently, the backing of a majority of MSPs. The Scottish government has set up a working group, and promised a national strategy. 

But for Daly, who himself struggled at a young age with his sexuality and society's failure to accept it, the matter remains an urgent one.  At just 21, he can reel off countless painful stories of young LGBTI students - some of which end in tragedy. One of the saddest elements of the story from St Kentigern's is that the pupil claimed his school was the safest place he had to express his identity, because he was not out at home. Perhaps for a gay pupil in ten years time, that will be a guarantee. 

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