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The Right to Family Life

Article 3(1) of the United Nations Convention on the Rights of the Child 1989 (‘UNCRC’), states:

‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.’

As with all international conventions, the rights and duties in the Convention must be set out in domestic law in order to be legally binding in British courts.

Section 55 of the Borders, Citizenship and Immigration Act 2009, (BCIA 2009), contains a mandatory duty on the Home Office when making immigration decisions to safeguard and promote the welfare of children in the United Kingdom. as they carry out their functions. The scope of the duty is broad, which means that any immigration decision taken within the United Kingdom should and must include a consideration of the welfare and best interests of any child affected.

Whilst the scope of the duty in the BCIA 2009 is broad, it is rather ironic that the Home Office appear on many occasions to interpret ‘broad’ in a way that ‘the reasonable man on the Clapham omnibus’ would consider anything but broad.

In a case that received some publicity in the media, a British man, Dan Newton, was told his Ecuadorean wife could not settle in the United Kingdom despite the couple having three young children, including a baby who was still breastfeeding. All of the children are British citizens.

Mr Newton had lived with his wife and three children in Abu Dhabi for nearly five years. The couple had previously lived in the United Kingdom for a year and their first child was born here.

In June 2017, Mr Newton was given three months notice of the termination of his employment. So he and his wife decided to return to the United Kingdom with their three children.

Mr Newton’s wife applied for a spouse settlement visa which was refused by the Home Office on the grounds that she did not meet the income requirement of the Immigration Rules. The financial requirement for a spousal visa is a gross annual income of at least £18,600. The rules also require that for an application to succeed, six months’ evidence of earnings must be presented.

The Home Office refusal letter said she had been rejected on the grounds that the eligibility financial requirement could not be met, because her husband was not present and settled in the United Kingdom and, at that point, unemployed in the UAE.

Mr Newton had he been actively looking for employment in the United Kingdom, but had not yet been able to secure a job because most companies require a face-to-face interview. As the sponsor for his family in Abu Dhabi, he was unable to leave his family there without him.

Mr Newton and his wife appealed the outcome, but the application was again refused because his wife did not meet the financial requirement.

In order to meet the financial requirement of the Immigration Rules, Mr Newton would first have to find employment with a minimum income of £18,600 in the United Kingdom and work for six months in that job before applying to bring his wife in. As Mr Newton was unable to leave his family in Abu Dhabi without his being present there in accordance with the terms of his residence permit, that would mean his wife would have to return to Ecuador until they could make a successful application for her spouse settlement visa.

The question arises as to what was to happen to their British children in the meantime? The children had never been to Ecuador before and the youngest was still being breastfed.

The Home Office letter refusal said that it did not believe refusal could or would result in “unjustifiably harsh consequences” for Mr Newton’s wife or her family. It went on to say that her family life could be maintained with her living outside the United Kingdom with “visits” and adding that there were no “insurmountable, serious obstacles” preventing them from pursuing family life this way.

“We are not satisfied your family life could not be maintained through regular contact with your sponsor and children in the UK and/or visits,” it read. “Whilst I acknowledge that you and your family wish to settle in the UK, we are not satisfied that that you have presented evidence of any insurmountable, serious obstacles preventing you from pursuing a family life”.

Really? It is difficult to imagine any more serious an obstacle preventing family life than tearing apart a family and removing the mother of the children to a country half way across the globe. What world does the author of this decision inhabit?

For the avoidance of any doubt, what the Home Office was suggesting was that, either the British children accompany their mother to Ecuador, (a country they have never lived in), or that their mother, who was breastfeeding an infant, left her family and went to Ecuador alone. Is this their understanding of taking into account the “best interests” of the children?

The minimum income policy, which was brought in when Theresa May was Home Secretary, was challenged in the Supreme Court, (MM and others v Secretary of State for the Home Department [2017] UKSC 10), but the judges held that the £18,600 income threshold was lawful.

However, the judges also said that while a minimum income requirement is “acceptable in principle” the way it has been implemented fails to take “proper account” of the Home Secretary's legal duty to safeguard children. The rules must be amended to take this into account, and also to allow “alternative sources of funding” to be considered alongside salary.

The judges recognised the income limit “has caused, and will continue to cause, significant hardship to many thousands of couples who have good reasons for wanting to make their lives together in this country, and to their children”.

They went on to say, “There are several types of family, not illustrated in the cases before us, upon whom the minimum income requirement will have a particularly harsh effect. These include British citizens who have been living and working abroad, have married or formed stable relationships there, and now wish to return to their home country”.

So what about Section 55 of the BCIA 2009? What about the United Kingdom’s adherence to the United Nations Convention on the Rights of the Child 1989? Can any reasonable person seriously believe that the Home Office refusal in the case mentioned above took into consideration the welfare and the best interests of the (British) children concerned?

If the Home Office really has any respect for family life and the best interests and welfare of children, they would abandon this cruel and nasty policy which is responsible for splitting apart British families in the name of “effective immigration and border control”, and replace it with a policy which does indeed respect family life and the best interests and welfare of children.

Nelam Trewin, May 2019

The Scandal of UK Visa Fees

It is a fact that the United Kingdom has some of the highest visa fees in the world. The fee for an application for indefinite leave to remain now costs £2,389 per person. That amounts to more than £10,000 for a family of four.

In 2011, the then immigration minister, Damian Green, announced that the Home Office would start charging fees significantly above the cost of administration in order to offset cuts to the funding of the immigration system.

For example, the current fee for naturalising as a British citizen is £1,330. The cost to the Home Office of processing a naturalisation application is £372.

Many applicants face serious financial hardship when paying these expensive visa fees. It should also be pointed out that, should an applicant make a mistake in their application resulting in a refusal, the visa fee is not refunded. They then face the prospect of having to find the funds to pay for their application for a second time or, worse, face the prospect of finding themselves without legal status in the United Kingdom. As the Immigration Rules are recognised as being very complicated and confusing, it is not surprising that people making their own applications without professional advice can make a mistake that ends up costing them dearly.

Because of the high cost of visa fees, (and the Immigration Health Surcharge where applicable), many applicants cannot afford to pay additional fees for the professional advice that would ensure such mistakes were avoided.

The Home Office has said that charging fees above cost is necessary to reduce the burden on taxpayers from the parts of the border, immigration and citizenship system not funded by charges. They also state that there are exceptions to application fees to protect the most vulnerable, (such as children in care), and that application fees are also waived where evidence provided shows that a person may be destitute, or where there are exceptional financial circumstances, and requiring a payment would result in a breach of rights under the European convention on human rights.

However, following a freedom of information request by the Guardian newspaper, figures published by the Home Office show the department rejected 72% of applicants seeking a fee waiver for their cases in 2018. The rate of rejections has ranged between 72% to 90% over the last five years.

The number of rejections among child applicants was also high. In 2018, 69% of fee waiver applications for someone aged 18 or younger were turned down.

The Home Office has stated that when setting fees, they also take into account the wider costs involved in running our border, immigration and citizenship system, so that those who directly benefit from it contribute to its funding.

This is disingenuous to say the least because those needing to renew or extend their visas have no choice if they wish to remain legally in the country. For example, individuals on the 10 year route have to renew their visas every 30 months over that period and face paying £2,033 every 30 months, (£1,033 visa fee plus £1,000 IHS), to remain lawfully in the country.

It should also be pointed out that many migrants working in the United Kingdom will have paid taxes for many years, whilst at the same time, they have been barred from having access to public funds to which they have been contributing through the payment of their taxes.

In his statement to parliament on 3rd April announcing the Windrush compensation scheme, the Home Secretary stated, “The United Kingdom has a proud history of welcoming arrivals from around the world. We have long held open the door to those who want to come and help build a better country…… and we have all benefited as a result, with the UK emerging as a stronger, broader, more vibrant and successful nation”.

The United Kingdom may have had “a proud history of welcoming arrivals from around the world” in the past. One could be forgiven for questioning whether that is still the case given the current level of visa fees.

The Home Secretary went on to state, “We would not be the country that we are today without the men and the women who crossed oceans to come here legally, to make their homes, to work hard, to pay taxes, to raise their families”.

So why should those who “work hard” and “pay taxes” be forced to pay exorbitant fees that many of them can’t afford having already paid their taxes like any other citizen and run the risk of jeopardising their immigration status if they are unable to meet these costs?

The cost of applying for or renewing a visa should be based on the cost of administration and should not be a profit centre for the Home Office.

Nelam Trewin, April 2019

The Immigration Health Surcharge

The IHS was introduced in April 2015 in a clampdown to so-called “Health Tourism”. It applies to migrants from outside the European Economic Area (EEA) who want to stay in Britain for at least six months.

The main rate at that time was set at £200 per annum which meant that an applicant applying for spouse entry clearance or an applicant applying for a work visa under the Points based System (PBS) faced an additional cost of £500 on top of the relevant visa fee.

In November 2018, the government announced their intention of doubling the IHS with effect from the beginning of 2019. This means that migrants are now expected to pay £1,000 in addition to the visa fees, (which rather like national rail fares), are increased annually by the Home Office.

When the time comes for a migrant to apply for further leave to remain, (typically after 30 months in Britain), he/she is required to pay the IHS once more. Most of these individuals have come to this country to work and are paying income tax and national insurance like most of the workforce. Notwithstanding that, they are being forced to pay an additional levy for access to the NHS or face losing their visa and therefore their right to live and work in Britain.

But the IHS doesn’t just apply to “temporary” migrants as the Home Office likes to call those who have not yet attained Indefinite Leave to remain, (ILR) or settlement. It also applies to individuals in this country who have lived here all their lives and who are on what is known as the “ten year route” to settlement.

Individuals on the ten year route face renewing their visas every 30 months over that period. Therefore following the increase in the IHS, an individual on the ten year route will have to stump up £2,033 every 30 months, (£1,033 visa fee plus £1,000 IHS), to remain lawfully in the country.

While those who are lucky to be high earners may have no concerns about their ability to pay the IHS, (even if they consider it unfair), many on the ten year route earning the average wage, (or below the average wage), face constant worry and stress about how they can meet these charges knowing that failure to do so jeopardises their right to remain in Britain.

One of the justifications for the IHS put forward by the government is that it helps fund the NHS. What an irony it is then when no less than the British Medical Association, (BMA), have warned that Government’s pledge to increase the costs of the immigration health surcharge could ultimately put off badly needed doctors and medical staff from coming to Britain. It is estimated that nearly a quarter of the NHS medical workforce received primary qualifications outside the EEA, with this figure rising to almost 50 per cent of staff, associate specialist and speciality doctors.

There is simply no justification to charge individuals who are already paying tax and national insurance a further £1,000 (per person) by levying an additional charge for the NHS. A British citizen paying their tax and national insurance is not subject to additional charges for the NHS. So why should a non- Briton also paying their tax and national insurance have to do so?

Nelam Trewin, March 2019