At some point from October 2016, in light of announcements made last week by the Government, non-EEA national partners and parents on the family route will be required to pass a speaking and listening test at level A2 in order to qualify, after two and half years in the UK, for further leave to remain on the 5year partner or parent route to settlement.
Persons settled in the UK may have come here under various categories of the immigration rules(or even illegally) and subsequently obtained settled status or become British citizens. Prior to their arrival to the UK, they may have left children in their country of origin, with such children resident abroad but still under the age of 18years. Upon the parent acquiring settled status, the expected course of action is to submit an application for entry clearance to enable the child’s entry to the UK.
The UK Government has managed for over 3years to cold-heartedly resist calls to scrap/amend the minimum financial income threshold requirements despite the adverse effects of the measures upon families.
On 9 July 2012, the UK Government introduced requirements through Appendix FM to the Immigration Rules that British citizens, those settled here, including those with refugee status show by way of specified evidence( by reference to Appendix FM-SE to the Immigration Rules) that they earn at least £18,600 gross per annum to enable sponsorship of their foreign spouses/partner’s entry clearance visa or leave to remain applications. The financial requirements refer to the requirements contained in paragraphs E-ECP.3.1 and E-ECP.3.2 of Appendix FM. Where children who are not British, settled here or EEA nationals are also to be sponsored, an additional £3,800 per annum for the first child would be required and then £2,400 for each additional child.
The problem is that Sponsors are finding it difficult to meet the requirements. The result is that families are being kept apart. Take the exampe of a British citizen who has met and married a foreign national abroad, had a child or children resident in that other country but be unable to bring his foreign spouse to the UK simply because he does not earn income which meets the fixed threshold. The children, normally being expected to remain with the mother abroad, are inevitably caught up in a situation where they very occasionally see their UK settled parent who between periods of separation may be making efforts to undertaking the necessary employment or self-employment in order to evidence that the requirements are met. The UK settled sponsor, due to inability to meet the income requirement from a single source of employment may also find that he has no choice but to undertake additional second employment. The result is that in light of the need to show relevant requisite evidence relating to continuity of employment, the father will not be able to undertake visits abroad for some several months thus impacting upon his family life with his children and spouse.
SUMMARY:HOW TO MEET THE RULES
There are various ways in which the income threshold of at least£18,600 can be met:
- Through the sponsor’s employment in the UK. The sponsor is required to have been in the same job earning the income threshold for 6months. Where the Sponsor has changed employment, he must have met the total annual amount required during the previous year;
- Through the sponsor’s self-employment in the UK. The sponsor is required to show that they earned the income threshold in the last full financial year or as an average of the last two full financial years;
- Through the Sponsor’s employment or self-employmemt outside the UK, where the sponsor is returning to the UK with their partner. The sponsor is required to meet the income threshold as if in the UK. The Sponsor must also have a job offer or established self-employment in the UK that meets the income threshold;
- Partner’s earnings in the UK. The income threshold can only be met if the foreign partner is working or is self- employed legally in the UK; prospective earning are not taken into account;
- Savings. Subject to applicable calculations, savings of above £16,000 are treated as income. The savings cannot be used to supplement income from self-employment;
- Pension from either the sponsor or partner paid in the UK or from abroad. The full amount needed must have been received in the last 12months;
- Other forms of income such as maternity allowance, maintainance payments, rental income,payment relating to service in HM Forces, bereavement benefit. The full amount required must have been received alone or as part of the income that meets the income threshold during the previous twelve months.
IMPACT UPON FAMILIES, PARTICULARLY UPON CHILDREN
The Children’ s Commissioner ‘s Office commissioned a Report with the research carried out by The Joint Council for the Welfare of Immigrants(JCWI) and Middlesex University after the Commissioner’s Office received, “scores of letters from British parents who are unable to meet the income threshold and are living in uncertainty, with families divided across borders as a result”. As published on the JCWI website on 9 September 2015, the Report, is dated August 2015 and titled, ” Family Friendly ? The Impact On Children Of The Family Migration Rules: A Review of the Financial Requirements”. The Report finds that the Rules intended to control immigration were impacting upon thousands of British children. The report, among other matters had regard in detail to the minimum income requirement and the ways in which it can and cannot be met and explored the detrimental impact of the Rules on the well-being of children who have been separated from a parent as a result. The report also found that an estimated 15,000 children have been affected by the changes to the financial requirement since the implementation of the immigration rules in 2012; thousands have been separated from a parent, many indefinitely; 79% of the children in the survey were British citizens; problems included separation anxiety; anger directed towards the remaining and absent parent; withdrawal from the absent parent; guilt and blame for the parent’s abscence; many parents are suffering from anxiety and separation as a result and the pressure of meeting the financial threshold and that this also directly impacts upon the children; the income level would not be met by almost half the adult population and many families with children may never be able to meet them; the income threshold is too high and is discriminatory;the Immigration Rules and accompanying guidance do not comply with the duty to safeguard and promote the best interests of all children in the UK.
The report also concludes that the UK now has the least family- friendly family reunification policies out of 38 developed countries. The report recommends the need to amend the current financial requirements. The principle of children’ s best interests as a primary consideration should inform the contents of the Immigration Rules rather than being dealt with primarily through exemptions or exceptions; where leave for settlement is not immediately possible, visit visas should be granted to enable the family to be together for shorter periods; reducing the income threshold to the equivalent of the minimum wage in the UK; taking account of the relative level of wages earned outside the UK; reduction of the £16,000 threshold before savings are counted and assets(including equity in property) to count without first being liquidated;inclusion of third party support when calculating whether the income threshold has been met.
A legal challenge to the income threshold passed through the High Court in 2013 however with a successful outcome in that court being subsequently overturned by the court of Appeal in 2014. It is currently understood that the relevant case is due to be heard by the Supreme Court. It is hoped that a successful outcome follows, however if unfortunately the challenge does not succeed, then at the very least, so as not to give an appearance of a cold- hearted Government, the detailed recommendations of the Children’s Commissioner’s Office should be followed to some extent.