November 26, 2020

The Visa Requirement That’s Playing Havoc With U.K. Families During COVID

Thousands of families in the U.K. are at risk of separation during the Coronavirus pandemic due to a minimum income requirement for spousal visas. The government says there is a system to help these families, but a leading migrant charity says caseworkers are not given the training required to process their claims.

Under the normal immigration regime, a foreign spouse of a British citizen can live in the U.K. as long as the combined annual income of the couple exceeds £18,600, with an additional £3,800 for the first child, and then £2,400 for each one after.

In ordinary times this system has come in for criticism, with opponents arguing among other things that it can lead to families falling through the cracks if their financial situation fluctuates even briefly, for instance during pregnancy, childcare or a medical emergency. It can also make the initial entry into the U.K. difficult for the spouse, as neither their income outside of the country nor future job offers are counted towards the combined income.

And that’s without even considering the economic impacts of a global pandemic. With a considerable downturn in economic activity in the U.K., many people have seen their income reduced if not completely dried up. As a result, many families are finding they have dropped below the minimum income requirement.

Since leaving university in 2010, Ahmed, a British citizen, had been steadily employed. He was a bank relationship manager for around seven years, and then went on to work for the city council. In September 2019, with the birth of his first child approaching, and with a considerable amount of money saved, he decided to take some time off and to look for a job again in the new year. He knew that in order to extend his wife’s spousal visa he would need to find another job by September 2020 so he could show six month’s worth of payslips indicating he made above the requirement: “I thought: ‘one year to find a job that’s over twenty grand, it’s going to be easy.’”

Ordinarily, it probably would have been. But after months of applying for jobs, Ahmed found that his employment opportunities had all but dried up: “Noone’s willing to hire me with all the experience and qualifications I’ve got.”

Ahmed is frustrated that despite them still having more than enough savings in the bank and other assets to take care of their family, his wife faces losing her visa. “My son is British, I’m British, this is just solely for my wife’s visa renewal. How can they kick her out of the country when she’s got a British son? You know, I don’t want to be in a position where she’s living in this country illegally.”

Ahmed is confident that if their case goes to a hearing, the judge will see that an exception should be granted, but it will nonetheless come with costs. For instance, his wife, rather than being on a 5-year path to permanent residency will be placed on a 10-year path, which means they will have to pay thousands of pounds more in fees and surcharges, and their travel options will be limited for longer.

Families such as Ahmed’s who are at risk of separation, among other people made vulnerable by the pandemic, should be protected by an “exceptional circumstances” clause in U.K. immigration law. This clause effectively means an applicant should not be refused if the decision “would result in unjustifiably harsh consequences for the applicant or their family.”

A cross-party group of 56 British parliamentarians are not satisfied with this theoretical safety net, however. They are calling for the income requirement to be suspended altogether.

“The Minimum Income Requirement is one of the worst features of some of the most anti-family migration rules on earth and thousands of lives are being destroyed as a result” says MP Stuart McDonald, the Scottish National Party’s spokesperson on Immigration, Asylum and Border Control. “Even without the pandemic, the rules are totally unjustifiable. Now with people losing income, even more people will be separated from loved ones.”

“The minimum income requirement for family migration prevents burdens being placed on the taxpayer,” says a Home Office spokesperson, “but we are keeping family immigration requirements under review and will make adjustments where appropriate and necessary.”

Another concern expressed by observers is the capacity of immigration case workers to properly process claims with exceptional circumstances. A freedom of information request to the Home Office from the Joint Council for the Welfare of Immigrants (JCWI) revealed case workers are given only two hours of training specifically related to the exceptional circumstances clause. JCWI’s Families Together Campaign Officer Mary Atkinson says this is not nearly enough for case workers to properly assess claims.

“We see decision after decision based on flimsy knowledge of human rights law and even of the Home Office’s own rules,” says Atkinson. “Caseworkers are extremely overworked and under pressure to meet unrealistic targets, so it’s no surprise that mistakes are made. But families are paying thousands of pounds and often waiting months for a decision. They deserve better than to have their future in the hands of someone with just 2 hours of training in a complex area of law.”

Ruhena lives in the English midlands with her five children, the youngest only six months old. She doesn’t earn enough to get over the minimum income requirement to bring her husband to the U.K. Under a change to the immigration regime in 2017, however, given exceptional circumstances her husband could still be eligible if (according to the Government guidance) “other credible and reliable sources of income, financial support or funds available to the couple are taken into account.”

In this case, Ruhena’s brother, who makes well above the minimum requirement, offered to act as her husband’s third-party sponsor. They collected all the documents required and lodged the application in January. Within four weeks Ruhena received a refusal letter, on the basis that she herself did not earn over the requirement, with no reference to her brother’s income or the exceptional circumstances claim.

“It was just one of your standard refusal letters that everybody gets,” says Ruhena. “I’m on a Facebook group (for people in a similar situation) so I put it onto the group, and everybody just said it’s a standard letter, it didn’t look like they even looked at (the) case properly.”

The issue is not simply that the application got rejected, but that the correspondence suggests the caseworker assigned to Ruhena’s husband’s case may have either failed to take into account her brother’s income or even may not have understood that a third-party sponsor could be a legitimate option.

“I’m sure if they looked at my case properly or went through every single piece of evidence that I submitted, I don’t think there would have been a reason for refusal.”

Now, with her husband still not allowed in the U.K., Ruhena says she’s effectively living as a single mother: “It’s like they’re playing with people’s lives. He should be here, should be supporting me. I’ve got to go back to work in December. I’ll be forking out hundreds of pounds in childcare whereas if my husband was here, I wouldn’t need to do that. We could do our jobs around our child.”

Ruhena is now waiting for an appeals hearing, and like Ahmed, she is hopeful a judge will take all the evidence into account, but JCWI’s Mary Atkinson says Ruhena’s story is all too common: “We see decisions that are copied and pasted, sometimes with incorrect details and, often, with crucial evidence completely disregarded. Families’ futures are on the line, and the decisions we see suggest that the Home Office is unable to properly safeguard their human rights.”

In response to a query about caseworker training, a spokesperson for the Home Office says: “Our immigration caseworkers are highly trained and skilled individuals who assess all applications with care and diligence. These are unprecedented times and we have already introduced measures to support people with their immigration status, including automatic extensions of visas and modifying immigration requirements to ensure people are not unduly affected by circumstances beyond their control.”

Mary Atkinson at the JCWI says there are tens of thousands of people on spousal visas, though not all of them will be in the same situation as Ahmed and Ruhena. Stuart McDonald of the SNP points out, however, that as the changes brought about by the U.K.’s exit from the European Union continue to come into effect, there could be many more families subject to the minimum income requirement.

“With European free movement rules no longer applying from January,” says McDonald, “again more families will face a future split apart. It is way past time for the U.K. government to ditch these disgraceful and hurtful rules that force its own people to choose between giving up their country or their family.”

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