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.