The government tried to sneak out its woeful response to a Supreme Court ruling without anyone noticing

The government has finally updated one of its most controversial immigration policies after the Supreme Court said it unfairly punished children. But some of those affected haven’t even heard of the new rules. And organisations have voiced serious concerns about the new policy, suggesting the Home Office may just be paying lip service to the court ruling.

The news may have been missed as the government announced it along with a raft of new policies on what’s commonly known as ‘take out the trash day’, before MPs leave Westminster for their summer break.

The policy, which made it apparently easier to meet the financial requirement to get a spousal visa, came into effect on 10 August with guidance [pdf].

New guidance

The rules state that anyone who wants to apply for a spousal visa must earn a minimum of £18,600 per year.

The old rules meant visa decisions couldn’t consider the salary of the non-UK national or any other sources of finance. Nothing has changed in that respect. But the amendments do say that in “exceptional circumstances”, financial help from a third party can count toward the financial requirement.

A Supreme Court ruling prompted the changes in February 2017. It said that the rules were harsh and unfairly punish children.

The policy [pdf] now is that the the Home Office can’t refuse entry clearance on financial grounds if it would mean a breach of human rights “because such refusal could result in unjustifiably harsh consequences for the applicant, their partner or a relevant child”.

The new rules are an improvement, according to the Joint Council for the Welfare of Immigrants (JCWI). But it also says the process is still overly complex. And it “continues to place a great burden on those applying to provide evidence to answer every possible reason a caseworker might have to refuse the application”. It says:

Applicants who cannot show their cases are ‘exceptional’ will apparently not be able to rely on any alternative sources of income they may have.

The guidance also gives individual caseworkers, who in many cases may not be adequately trained to conduct a complex balancing exercise, a huge amount of leeway to decide what is and is not ‘exceptional’.

A JCWI spokesperson told The Canary it will have to see how the Home Office applies the rules in practice. But the suggestion is that caseworkers may use their own unqualified judgment to see if a case is “exceptional”. In reality, nothing may change.

‘Skype families’

It may also mean the new rules won’t necessarily touch the thousands of families currently having a relationship by Skype. 15,000 couples with children have already felt the sharp end of the old policy, who in theory, could reapply for a spousal visa.

The Canary has spoken to two mothers who have seen their lives turned upside down by the ‘minimum income rules’.

Saima Jaffrie married a man of Indian nationality; but he earned a £70,000 salary working remotely for a Swiss company. He would have brought this salary to the UK. Instead, Jaffrie had to move to Dubai and take her child away from her birth country. Because after falling pregnant, she was only working part time and so wasn’t earning over the £18,600 threshold.

Similarly, Suzi Chaemchaeng (formerly Suzi Hall) moved to Thailand to live with her husband. With a daughter approaching two, she returned to England to look after her sick mother. She’s now studying for a diploma that will give her a job to take her over the income threshold. She can then apply for her husband’s visa in due course. This has meant keeping her daughter and husband apart for a long period. And it makes her one of the “Skype families” the Children’s Commissioner described in 2012.

The price of love

The Canary asked both women if they would reapply, but neither were aware of the changes. But if they do apply, it will mean another hefty application fee. This raises another point of how the rules disproportionately affect people on lower incomes. A spokesperson from JCWI told The Canary:

The £18,600 income requirement places an arbitrary price on love, and many people, particularly those living outside the south east and women, will not be able to earn enough to live in the UK with a foreign spouse. The government needs to stop playing games with people’s lives and to accept that the poor have as much right to fall in love with a foreign national as the rich.

The information coming out on the new visa rules is spotty. And their purpose may be to simply comply with a court judgment. The question remains, however, about what purpose these rules serve overall other than to keep families apart.

Get Involved!

– If you have been affected by these rules get in touch with JCWI and tell it about your experience. And support JCWI work.

– Write to your MP about the rules and send their response to JCWI.

– Read more Canary articles on immigration.

– Support The Canary if you appreciate the work that we do.

Featured image via Flickr