UK SC: Income threshold to sponsor a spouse stands but rules need to safeguard children’s welfare

UK SC: Income threshold to sponsor a spouse stands but rules need to safeguard children’s welfare
 
UK: Income threshold to sponsor a spouse stands but rules need to safeguard children’s welfare
 
On 9 July 2012, then Home Office Secretary Theresa May imposed a new regulation that would make it harder for British citizens to sponsor a spouse to live with them in the United Kingdom. The new ruling states that a sponsor must earn at least £18,600 for their application to deserve attention from the immigration bureau. The figure could potentially go up depending on various circumstances in case she/he wants to bring their child into the country.
 
Sometime in 2013, four linked cases challenged the regulation. Amongst which are the cases of refugees married to British citizens such as those of Lebanese known as MM (MM & Ors v SSHD) and Congolese SS (SS [Congo] v SSHD). The argument is that the exceedingly difficult and inaccessible threshold imposes a burden on the sponsors as it requires them to apply for a higher paying job since income from multiple sources is *not allowed and included in the computation of their earnings. 
 
Critics said that it has separated hundreds of families and forced spouses to either live in exile as they waited for the government to overturn the insurmountable parameter.  A large number of children, on the other hand, ended up being “Skypekids,” as being physically together with one of their parents has just become impossible.
 
The Update
Just recently, Supreme Court judges released a statement concerning the case. They said that Theresa May’s 2012 regulation is indeed “acceptable in principle.” However, the justices ruled that:
  • the Home Office’s current rules and guidance are “defective” and “unlawful”, and these should be amended to provide comprehensive protection involved in the legal conundrum;
  • that the welfare of children in spouse/partner visa applications has been neglected and indeed discordant with their rights under national and international law; and
  • that consideration must be given to alternative sources of income which can be used in determining whether the applicant is eligible for sponsoring a spouse or a child.
 According to the Migration Observatory, an immigration and migration analysis provider based in Oxford, several factors render the regulation unfair both for the non-EEA/UK and UK citizen involved.
 
They are listed as included:
  • Almost 40 percent of British citizens working full-time and part-time earn less than the income threshold; 
  • Currently, the non-British partner’s income is not included in the income threshold calculation. Hence, even if the parents make enough money as a couple (or with their combined income) to sustain a decent living in the UK, physically living together is still impossible;
  •  While the non-British partners are disqualified from most welfare benefits in the first five years upon their arrival in the country, their presence can still affect the British partner's entitlement to several rights such as tax credits and housing benefits; 
  • The income must come only from one source, which doing double and multiple jobs won’t do any good to qualify for the sponsorship program;
  •  A lot of loopholes exist in the regulation such as the difficulty to calculate the couple’s net contribution to public finances, which depend on their individual circumstances and use of public services. 
Of course, the nation remains divided. The threshold is just fine for those who believe that it’s now high time to build an immigration system that works in the national interest. On the other side of the fence are those who see the regulation as nothing but “heartless.”
 
 As per the cases of the four families who challenged the Home Office, they still have to wait for their appeals to be reconsidered. Otherwise, all they can do is to wait for the impossible, which is a complete revision of five-year regulation. Impossible, because everyone knows that Theresa May, now the sitting prime minister, is keen on adhering to the “British First” policy especially after last year’s referendum results.
 
But the Supreme Court’s ruling is a welcome change and could pave the way for further regulation revisions in the future. Perhaps this could happen after Article 50’s trigger date in March when the country is ready to begin anew outside its usual economic and political allies.
 
For more questions about UK’s Family Migration Rules, speak to our OISC Registered UK Consultant.     
 
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