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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Article 50: Theresa May tries to charm the EU but danger lies ahead

As the Prime Minister adopts a more conciliatory stance, she risks becoming caught between party and country. 

She may have been a "reluctant" one but a Remainer Theresa May was. The Prime Minister's first mission was to reassure her viscerally anti-EU party that Brexit meant Brexit. Today, by invoking Article 50, she has proved true to her word.

In this new arena, it is not Britain that has "taken back control" but the EU. When Brussels drew up the divorce proceedings it did so with the intention of maximising its influence. The withdrawal deal that Britain reaches must be approved by at least 72 per cent of member states, representing 65 per cent of the EU’s population. The two-year deadline for leaving can only be extended by unanimous agreement. Even the much-maligned European Parliament has a vote.

While keeping her famously regicidal party on side, May must also charm her 27 EU counterparts. In her Commons statement on Article 50, she unmistakably sought to do so. The PM spoke repeatedly of a new "deep and special partnership" between Britain and the EU, consciously eschewing the language of divorce. In contrast to Donald Trump, who pines for the EU's collapse, May declared that "perhaps now more than ever, the world needs the liberal, democratic values of Europe" (prompting guffaws and jeers from Tim Farron's party and the opposition benches). Indeed, at times, her statement echoed her pro-Remain campaign speech. 

Having previously argued that "no deal is better than a bad deal", the Prime Minister entirely ignored the possibility of failure (though in her letter to the EU she warned that security cooperation "would be weakened" without an agreement). And, as she has done too rarely, May acknowledged "the 48 per cent" who voted Remain. "I know that this is a day of celebration for some and disappointment for others," she said. "The referendum last June was divisive at times. Not everyone shared the same point of view, or voted in the same way. The arguments on both side were passionate." 

Having repeatedly intoned that "we're going to make a success" of Brexit, May showed flashes of scepticism about the path ahead. She warned of negative "consequences" for the UK: "We know that we will lose influence over the rules that affect the European economy. We know that UK companies that trade with the EU will have to align with rules agreed by institutions of which we are no longer a part, just as we do in other overseas markets. We accept that." May also acknowledged that any deal would have to be followed by a "phased process of implementation" (otherwise known as transitional agreement) to prevent the UK falling over what the PM once called the "cliff-edge". 

In Brussels, such realism will be welcomed. Many diplomats have been stunned by the Brexiteers' Panglossian pronouncements, by their casual insults (think Boris Johnson's reckless war references). As the UK seeks to limit the negative "consequences" of a hard Brexit, it will need to foster far greater goodwill. Today, May embarked on that mission. But as the negotiations unfold, with the EU determined for the UK to settle a hefty divorce bill (circa £50bn) at the outset, the Prime Minister will find herself torn between party and country. Having delighted the Brexit-ultras to date, will she now risk alienating the Mail et al? The National Insurance debacle, which saw the government blink in the face of a small rebellion, was regarded by Remainers as an ominous precedent. May turned on the charm today but it will take far longer to erase the animosity and suspicion of the last nine months. 

George Eaton is political editor of the New Statesman.