The Home Office, EU – and Legal Fairness

European Union

Recent months have seen immigration as an issue ever more topical, controversial, and relevant.

As migrants attempt to cross into the EU in their thousands – to a mixed reception – and as the UK prepares for a long-awaited and historic in/out referendum on the EU, immigration is a subject which dominates the news cycles, and the political arguments for and against continued UK membership of the EU. Although the referendum is a multi-faceted and complex issue touching on issues of trade, finance, economics and national sovereignty – certain politicians and elements of the media have made the debate (wrongly) to be all about immigration. That is incorrect, as the EU in/out debate is not just limited to immigration.

It is a fact, though, that the EU principle and pillar on Free Movement of People has meant that the last twenty years or so has seen great movement and migration throughout the Continent. As the EU has expanded, with more former Soviet-era satellite states joining the EU as they move towards greater openness and democracy, millions more have become European citizens and contributed to that movement.

Aside from that, the UK (in common with other member states) has also seen migration from non-EU member states. Be they refugees, white-collar professionals, people with ancestral ties and claims to a European citizenship, students, performing artists, those moving with their jobs, and similar, numbers of migrants have certainly, irrefutably increased.

One category of such non-EU migrants is families. With increasing movement of people globally, it is becoming increasingly common for people move countries with their families. For UK citizens with a non-EU spouse, immigration law has long remained not in their favour.

Under immigration rules introduced in 2012, British citizens must be earning in excess of £18,600 before they are allowed to bring their non-EU spouse to the UK. This rises to £22,400 if they have a child who is not a British citizen, with each additional child adding £2,400 to the earning required.

With the recession, Eurozone crisis, and similar economic issues, not every family in the UK will meet those strict financial criteria. Indeed, British citizens on the minimum wage, in reality, will not be earning enough to bring their spouses and children to the UK. Figures estimate that 43% of the population falls under those thresholds.

Since 2012, critics of the new rule have argued that, quite simply, it is unfair. Research recently commissioned by Middlesex University and the Joint Council for the Welfare of Immigrants charity discovered that about 15,000 British children are either separated from one parent or forced to live and grow up outside the UK, because of the earnings thresholds. Children’s campaigners have long claimed this to be unfair for children. Family advocates and many others have also stepped in to criticise the earning thresholds. For example, in 2015 Conservative think-tank Bright Blue called on the Home Office to change the rules, drawing attention to 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”. Bright Blue did not suggest scrapping the rules – but rather proposed that family visas for non-EU spouses and dependents be granted as long as the British spouse had paid income tax for the last 30 months.

The government remains in support of the policy. The Home Office has expressed its intention and determination that “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.”

The earnings thresholds have, inevitably, seen families grow up and live apart, with the non-UK or EU citizen spouse and dependents unable to join their British family. Despite that unfairness, there might be some hope for families separated due to the 2012 rule.

In a long-running legal battle, three appellants affected by the rule have been granted leave to have their case heard by the Supreme Court. Abdul Majid and Shabana Javed are British citizens married to Pakistani nationals; the third appellant is referred to as MM and is a Lebanese refugee. When their cases came before the High Court, Mr Justice Blake had originally ruled in their favour. In his verdict, he ruled that the earnings thresholds were “a disproportionate interference with a genuine spousal relationship.” He recommended lowering the thresholds to a limit closer to the minimum wage, to make the policy fairer.

The Home Office appealed the High Court decision. Judge Blake’s verdict was overturned in 2015. However, the appellants were given leave to appeal to the Supreme Court. The case is to be heard later in February, with a verdict expected in several months time.

If the outcome is in favour of the appellants and reinstates Judge Blake’s initial verdict, then it will be a triumph for the inherent fairness of British justice. It will also be a greatly welcome triumph for those who have campaigned for so long on this matter – and above all for the families affected by the immigration rules.

One argument likely to be advanced will be human rights; essentially, it is against Article 8 (right to home and family life) for families and children to be separated in such a fashion. Although Article 8 is now enshrined in the UK Human Rights Act (1998), it was first set out and advanced by the European Convention on Human Rights (ECHR) in the 1950’s.

Which returns to the upcoming EU referendum and potential Brexit. The immigration debate is, quite clearly not just limited to the EU and refugees; there are other, often forgotten sides to it. Also, the EU debate is by no means confined to immigration; law and order, including human rights, will be but one of the many factors to debate and consider prior to the referendum.

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