The Supreme Court has just published a decision on the family immigration rules introduced in 2012 by the Home Office. Their decision upholds the minimum income requirement that binational families, wishing to reside in the United Kingdom, earn an annual salary of £18,600. This amount increases significantly if the families have children. The decision, for these families, is devastating.
Why has the minimum income requirement received so much attention? In short, it plays a central role in promoting harm and denying basic human rights to British Citizens who are one part of a binational family. Binational families are the product of a formal relationship between a British and a non-British citizen. They may or may not be married, and they may or may not have children. But they all share one common element: the main parties of the family are not all UK Citizens. For binational families that do not meet the requirements of the family immigration rules, they live their daily lives apart, separated by state borders.
The rules were challenged by those who argued that it contravened Article 8 of the Human Rights Act, which guarantees a right to a family life. Critics also argued that it neglected to consider also the earning potential of family members wishing to join their spouse living in the UK. The minimum income requirement establishes a hierarchy within this: if you earn enough money you can apply to live with your binational family in the UK. But if you earn less, then you need not apply. The government, in a 2012 statement of intent justified this decision, saying it did not contravene Article 8.
Family migration policy, as legal professor Helena Wray has written, is generated by governments with little thought given to the actual families that will be affected by them. Governments decide their policies in the hope of pleasing their domestic populations. A 2016 publication by the Migration Observatory revealed that 57% of people surveyed believed that family migration was “more cost than benefit” to the UK. The report drew on a 2013 survey on British Social Attitudes which similarly documented a negative public sentiment surrounding family migration. When the Home Office introduced this new requirement, it could be seen to be tackling the rising UK immigration numbers. It is not surprising that the 2015 Global Migration Index ranked the UK 38th (out of 38 developed countries) in its ability to support family reunification.
What is more, Family Friendly, a report published by the Children’s Commissioner for England in 2015, revealed that when crafting the family immigration rules, little thought was given to families that could not live together in the UK. It was simply assumed that they would go to live in another country.
‘Right’ kinds of families
It is clear that the 2012 rules that the Supreme Court have now upheld are harmful. Research from the Migration Observatory revealed that the income requirement is discriminatory. Women and ethnic minorities struggle to meet this arbitrary benchmark compared to men. The Migrants’ Rights Network (MNR) suggested geographical discrimination as well, because where you live determines your annual income. Those residing in the Greater London area may be likely to earn enough, while those outside this region will struggle to earn over the threshold.
The requirements also hurt children. It is estimated that, at present, 15,000 children are affected by the rules. According to the Children’s Commissioner report binational families that have a parent absent suffer particular psychological stress and mental health challenges. The emotional duress is coupled with an increased level of responsibility for children as they bear some of the responsibilities that would otherwise be met by the absent parent. Their stories are documented in the report. As third-party intervenors in the judicial review, the Children’s Commissioner suggested that the government abdicating its responsibility to children as outlined in the UN Convention on the Rights of the Child.
In light of the Supreme Court’s decision, the application of the income requirement will need revising when applied to the best interest of children. However, a 2014 study into family migration showed how family migrants are considered the weakest type of migrant. While it is assumed that highly skilled workers will contribute to society, it is also assumed that family migrants will not. It is also assumed that family migrants foster cultural divisions and generate hostility in the community.
Arbitrary requirements are put in place to ensure family migrants cannot enter the country with ease. And it is likely that governments will continue to create requirements that favour hetero-, traditional, Western families, as Anne-Marie D’Aoust has argued. This ensures that entry into the UK will be granted to the privileged few.
In fact, in light of the current political climate in the UK, this is a problem that is set to grow. Brexit is likely to mean that European Economic Area (EEA) nationals, previously excluded from family visa requirements, might now face this same problem.
In December 2016, British Future, an independent think tank specialising in issues around identity, integration and migration published the findings of a cross-party inquiry into securing the status of EEA nationals. Their recommendation, to grant permanent residency to EEA nationals already living in the UK, prior to triggering Article 50 was rejected by a majority in the House of Commons in February.
Today’s decision does offer a tempered hope. The Home Office must now re-imagine how the Family Immigration Rules affect children. It pushes them to recognize the best interest of the child, as document in the Convention on the Rights of the Child. Consequently, the work performed by activist groups such as the MNR, the Joint Council for the Welfare of Immigrants, Brit Cits and Love Letters to the Home Office, along with the Children’s Commissioner for England will remain extremely important in the campaign to achieve migration justice in the UK and re-imagine a family migration policy that is both child, and family, friendly.