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