How the UK does all it can to keep non-EU partners separated

By Dr Helena Wray and Eleonore Kofman

The misery of thousands of children separated from a parent because their British mother or father cannot meet onerous financial conditions (principally, a minimum income of £18,600 pa) for the sponsorship of their non-EU partner to live in the UK, was revealed this week.

As has covered, a report by the Children’s Commissioner for England shows the income requirements, which were implemented in 2012, are not only cruel but fail to meet their stated objectives: they do not reduce reliance by migrant partners on public funds and they do not enhance their integration. 

British citizens and residents who need to live in the UK or who simply prefer to live in their own home with their life partner must choose between separation or exile, either of which may be indefinite.

The financial requirements are part of a sustained attack on the rights of citizens to live in the UK with their family members if the latter are not citizens of a European country. While the government denies that its policies aim to reduce the numbers entering the UK, declaring this to be no more than a desirable side effect, family migration is included in the net migration target and the evidence base for policy is often flimsy.

As well as the financial requirements, the coalition government introduced a pre-entry language test for spouses (initially proposed by Labour) in 2010 despite the absence of evidence that learning English before entry enhances integration and without ensuring that an infrastructure for appropriate learning and testing was in place. In 2012, alongside the financial requirements, the government tightened the rules for admission of elderly parents and other vulnerable relatives so that it is all but impossible to qualify and still be fit to travel to the UK.

Enhanced suitability criteria allows refusal of applicants for minor immigration infractions. The spectre of foreign criminals has been used to mask changes that reduce the ability to rely on article 8 ECHR (the right to respect for family life) of migrants with family ties to the UK, even if they have committed no crimes.

Controls over family migration are a tough proposition for governments, even without the hostage to fortune of the net migration target. Control is seen as critical to political credibility but each refusal impacts directly on a British citizen or resident in the most personal areas of their life. The trick is to find policy mechanisms that can be applied principally to those whose claims can be marginalised or delegitimized, often because they come from non-white communities of migrant descent.

The classic example is the primary purpose rule which was abolished by the Labour government in 1997. This, for the previous twenty years, had treated almost all South Asian arranged marriages as entered primarily for immigration purposes because of the absence of prior romantic courtship.

The pre-entry language test draws implicit legitimacy from the perception that problems with educational achievement, social participation and oppressive family arrangements in some communities are perpetuated through international marriages, involving poorly educated, low skilled spouses from ancestral countries of origin.

The financial requirements are riskier from that perspective. Almost half the adult working population do not earn enough to qualify, including anyone working full-time on the minimum wage or even, from next April, the ‘national living wage’ of £7.20 per hour . Those affected are not the unemployed, who would not have qualified under the former rules, but the ‘hard-working families’ of modest means (including but not only members of ethnic minority communities) who are more typically courted by politicians.

For some, the income level will always be out of reach. The young, those living outside South East England, and women especially if they have children, have been hardest hit. Those surveyed for the Children’s Commissioner’s report, while not selected to be a representative sample, demonstrate their diversity. They work in a range of occupations, run businesses, care for children or are studying. They are more educated than the population as a whole. They met their partners working, studying, volunteering or backpacking abroad or because the partner came to the UK for similar reasons. Countries of origin are diverse although the most common is the United States.

International marriage is part of mainstream British life. Travel is now a normal part of the life course, often undertaken precisely at the age when life-long relationships may be formed. It is not only those directly affected but their parents and grandparents who are outraged by the rules. Victims have had some sympathetic media coverage, including in outlets not usually favourable to immigration causes and it is not only opposition MPs who have misgivings. It has also been reported that the Home Affairs Select Committee will take up the issue. It is possible that the government may have miscalculated, creating a policy that hits too widely to be viable in the long term.

That may prove to be the case but it remains difficult to see how a government determined to reduce net migration to the tens of thousands can be forced to change tack by political pressure alone. While we are proud of the solid evidence and analysis in the Children’s Commissioner’s report, its arguments have been made before to little effect. The best hope for change in the short term lies in a human rights challenge to the rule which will be heard by the Supreme Court early in 2016.

The victims of this policy are British adults and children of all ethnicities, backgrounds and occupations but, like other less instantly sympathetic minorities, human rights may offer them the most effective protection from the excesses of majoritarian politics that is available.

Dr Helena Wray is an assosicate professor of law and Eleonore Kofman is a professor of gender, migration and citizenship. They are co authors of the Children's Comissioner's report.

The opinions in's Comment and Analysis section are those of the author and are no reflection of the views of the website or its owners.