by Colin Yeo;
Imagine you are British and, like any number of people, you met your partner at a university or college in the UK, where they were attending as a foreign student. Or maybe you just met socially in Britain, when he or she was on a short-term work visa. Or perhaps you met abroad when you were travelling or working in another country. If you have any children together, they will automatically be British whether they are born in the UK or abroad.7 You would probably have realised that there might be rules that must be met in order for you to live together in the UK as a family, but you may well not have known the details. Then you find out about the £18,600 minimum income requirement. As a young person, it is hard to find a salary paying £18,600 outside of London. And if you are working a minimum-wage job, it does not matter how hard you work; it is likely that you will never be able to afford to live in your own country with your partner.
Returning to Kylie and Ryan, this is the situation they faced. Jobs earning £18,600 are hard to come by in Omagh, Northern Ireland, even if Kylie were somehow able to juggle full-time work with being a single mother to three young boys. She would probably need to work in Belfast, which would be a four-hour round commute. Moving to Belfast would be impractical, because who would look after the children during the working day if she moved away from the rest of her family? This also assumes that she would even be able to find a job paying sufficient wages in Belfast. Initially, Kylie’s hope had been that Ryan could come to the UK on a visit visa to look after the children, allowing her to go to work so she could then sponsor him for a proper spouse visa. But Ryan was detained and turned around by immigration officials in Dublin when he flew in for a ten-day visit on his thirty-third birthday in 2019. Luckily, he and Kylie had planned to surprise the children, who knew nothing of the anguish their parents faced. To make matters worse, Kylie cannot return with the children to the United States because Ryan, who was discharged from military boot camp after injuring his ankle, now works in construction and does not earn enough to sponsor her for a green card. So, they live apart, the visa rules of both their countries meaning their children must grow up without one or other of their parents.
Like Kylie and Ryan, those affected by the 2012 rules either have to live abroad, if another country will accept them and they can make a living there, or else separate and face trying to keep in touch at a distance. There is no exception for Brits returning with family members from work abroad, as many have found to their surprise and cost.
For example, meet Stuart, another Brit, who qualified as a teacher in Scotland but moved abroad in search of opportunity and adventure. He undertook voluntary service overseas in Malaysia and worked in Kenya and the Middle East, amongst other places, before eventually arriving in Turkey. There, he was introduced by a colleague to Laila, who worked in the textiles industry buying for British companies like Marks & Spencer, Debenhams and Selfridges. She spoke good English, had studied in London herself and worked with lots of British businesspeople. They married and had two children together: Barry, now aged nineteen, and Lara, now aged twelve. Getting tired of increasingly overcrowded Istanbul many years later, worried by the political situation in the country and mindful of the desirability of a British education for their British citizen children, they decided it was time to move to the UK. Stuart went first, finding a house to buy on the west coast of Scotland and a teaching job. It paid more than the minimum required, and when I spoke to him he said he had thought it would be simple to get the visa for Laila. She discovered otherwise. As it is necessary to hold such a salary for half a year before sponsorship, the couple had to spend six months apart before they could even apply, otherwise the Home Office would not accept Stuart’s income as valid. Visa officials then sat on the application for a further three months before granting it. Laila felt humiliated, her friends and family assuming that Stuart had abandoned her and the children. All that time, Stuart was separated from Laila and their children, and the family had to bear the expense of running two households.
That was back in 2017, and Laila’s extension application was approaching when I spoke to the couple in 2019. The minimum income rule applies not just to the initial visa application but also to the extension that must be made after two and a half years, as well as the settlement application at the end of five years. With Stuart and Laila both having lost their jobs in the meantime, it was going to be difficult, perhaps impossible, to qualify. They had money in the bank and some pension funds from their jobs in Turkey, but it would be necessary to call on the generosity of friends and family to get them over the line.
Another couple I spoke to when researching this book were also dreading their coming extension application. Caroline and Carlos met in Ecuador in 2015. They married over there and when Caroline, who is British, fell pregnant, she moved back to the UK to work, build up some savings and give birth. She thought her stay would be temporary and she would head back out to Ecuador soon afterwards. Carlos, for his part, comes from a well-off family, had studied in both the UK and the USA, has a degree and would easily be able to support the family. Yet still, it all started to fall apart after Thomas was born. Suffering from what she now realises was postnatal depression, Caroline found that she did not want to leave the UK. Carlos had come over on a visit visa for the birth and eventually they decided to apply for him to stay. With Carlos not allowed to work, no money between them and facing huge application fees and lawyer costs, they ended up living off credit cards in a caravan in a friend’s garden. To make things worse, their application was initially refused by the Home Office, before their appeal was eventually allowed no less than another year later, after a thirty-minute hearing. That was two and a half years ago. Although Caroline was now back on her feet and working as a freelance television producer when I spoke to her, she still felt a constant sense of anxious dread at the prospect of having to go through it all over again every two and a half years until Carlos could finally apply for settlement ten years later.
Where a couple are separated by these ruthless rules, you might hope that they at least could visit one another. But Carlos was very fortunate indeed to get his visit visa. Normally, UK visit visa applications by the foreign partner of a British citizen to join them in the UK are refused, often because officials assume that the partner will then break the rules and refuse to leave at the end of the visit. Indeed, this is what happened when Ryan tried to visit Kylie; he was interviewed by immigration officers and they refused him entry, detained him overnight and put him on a plane back to the United States the next morning. Any face-to-face visits in such cases would need to be conducted abroad, not in the UK. That is a challenge, given the British citizen might well only have limited holidays and needs to earn not spend money to meet the minimum income requirements.
Where a family does apply and is turned down, it is typical for civil servants to note in the refusal letter that family life can be maintained via magical ‘modern means of communication’. It is a phrase familiar to all immigration lawyers and judges and it is universally considered to be a joke in very poor taste. It may be that the civil servants who use the copy-and-pasted phrase in their refusals really believe what they say. Maybe they think that a toddler and their father can meaningfully engage on Skype, tell each other about how their day has been and tenderly articulate their love for one another. More likely, it is a fig leaf for a refusal that everyone knows will split the family apart. It is a lie that officials use to insulate themselves from the real-world impact of the rules they must enforce as part of their job. As one family law judge noted, rather more realistically, ‘You can’t hug Skype.’8
The Home Office will say that affected families are not ‘forced’ apart because they can always go and live in another country. Firstly, that is not necessarily the case. This assumes that the unspecified ‘other country’ will have rules more generous than the UK’s, and that the family will qualify to live there. As Kylie and Ryan have found in their experience with the US green card system, this is by no means always the
case. Secondly, it seems very strange public policy to force families abroad as the cost of their staying together. Any children will automatically be British and have an absolute right to enter the UK later in life, despite having been raised and educated abroad. It is hardly a good way to integrate the next generation of British citizens. Such exile is also unlikely to be short-term, because it will be harder to find a high-paying job from abroad and, as we have already seen, many families have to split apart if returning from abroad. In order to move to the UK at the same time, the British sponsor would need to have been earning at least £18,600 for at least six months abroad and have a job offer for a future role in the UK paying at least that sum.
As with many immigration policies, one is left with the impression that short-term politics outweigh responsible government.
WHAT IS LOVE?
The minimum income requirement is the most controversial of the requirements for a spouse or partner visa, but it is far from being the only requirement. If the couple are not in a formal marriage or civil partnership, they will need to prove that they have lived together for two years or more. The other criteria include that both partners are over the age of eighteen; that the couple are not ‘within the prohibited degree of relationship’ as the rules put it; that any previous marriage or civil partnership has been formally dissolved and the relationship is not a polygamous one; that the applicant passes the English language test and that the relationship is a genuine one. In fact, it has to be ‘genuine and subsisting’, each member of the couple must have ‘an intention to live permanently with the other’ and they must have met in person. These rules are set out in the rather Jane Austen-esque ‘eligibility’ and ‘suitability’ sections of the Immigration Rules. These are rules concerning the nature and quality of a relationship.
How do you prove to an official in a tower block in Croydon who you will never meet that your relationship is a genuine one? And what is a ‘genuine and subsisting’ relationship, anyway? Is it one founded on the Western notion of romantic love? Or are arranged marriages allowed? What about relationships formalised because the couple need a visa in order to live together? Or a relationship where one of the parties hopes to gain something, like money, status or a visa? Appendix FM-SE of the rules sets out precise documentary requirements for every permissible source of income. Other than requiring a formal marriage or civil partnership certificate in spouse applications, it is, however, silent on how to prove a relationship genuine.
There is guidance available to Home Office staff about what to look for and what documents to expect, but even if a person thinks to look for such guidance, it is virtually impossible to find on the gov.uk website unless you know where to look.9 Thus, a couple who want to apply for a visa are basically left clueless as to what evidence might make or break their case. Unless they use a lawyer, of course, but that costs yet more money. The idea seems to be that a ‘genuine’ couple will not need help or guidance to prove their case. But the reality is that plenty of these ‘genuine’ couples naively believe that officials will not assume they are lying from the get-go. They do not understand the culture of disbelief and the pressure officials are under to refuse applications. This is an understandable but potentially very costly mistake to make.
The well-hidden guidance referred to above tells those of us in the know about the approach the Home Office will follow when determining whether or not a couple is ‘genuine’. It starts well, by stating the assessment ‘is not a checklist or tick-box exercise’. However, it then nevertheless sets out a checklist of six things that might count in a couple’s favour – and twenty-two things that might count against them. Being in a modern, secular relationship really helps, as does the length of relationship, cohabitation, having children together, sharing a mortgage, visiting each other’s home countries and being able to produce documentary evidence to prove all these things. No doubt they are all positive considerations, but what about a religious couple who did not live together before marriage? Or a couple in an arranged marriage? These relationships are to be subject to ‘additional scrutiny’, according to the guidance.
Even these checklists of factors only tell part of the story. What documents might a couple submit for inspection by an official to actually prove cohabitation or that a relationship is ‘genuine and subsisting’, for example? Where the couple have actually lived together it should be fairly straightforward to prove cohabitation, assuming that they both ended up with their names on utility bills, bank statements and the like. Sometimes one of the partners runs the ‘life admin’ and only their name appears on official documents, which can be a real problem. Proving the quality of relationship is far harder still. Lawyers advise sending in photographs taken together on family holidays and at social occasions, printed copies of WhatsApp, Skype or text message communications, statements from the couple and from family and friends and even receipts or travel tickets in their names, putting them together in the same place at the same time.
Where the migrant spouse or partner has a poor immigration history, refusal is virtually guaranteed no matter what evidence is submitted. This might happen where, for example, the migrant has overstayed a visa, then popped up again later to apply to stay as a partner, or even where he or she followed the rules by leaving the country to re-apply for entry. Some might say it is fair enough that a migrant is refused future entry in these circumstances; but this knee-jerk response ignores the impact on the British partner and any children. The decision letter will argue that photographs can be faked, that statements and letters of support are lies, that communications are self-generated and that travel to each other’s countries does not mean that the couple were visiting each other. The subtext is often that the migrant spouse or partner is simply after a visa, not a relationship, and that the British-based spouse or partner, often a woman, is a naive innocent who has been duped and needs to be protected from the predatory foreign male by vigilant immigration officials. Sometimes both parties are accused of being in on the deception, in which case the Home Office and politicians label it a sham marriage.
Immigration rules specifically aimed at ‘marriages of convenience’ date back to 1977 and marriage registrars have been obliged to report suspected sham marriages since the Immigration and Asylum Act 1999.10 The Immigration Act 2014 went further still by introducing a new mechanism for the Home Office to object to a marriage. The department estimated at the time that there were as many as 4,000 to 10,000 such sham marriages every year.11 The evidence basis for this surprising assertion was simply non-existent, though. At around the same time, then immigration minister James Brokenshire stated that the Home Office had intervened in 1,300 sham marriages the previous year. It later transpired these were not proven sham marriages, but were simply cases where the Home Office had, rightly or wrong, intervened. And, unfortunately, immigration enforcement teams crashed a lot of perfectly genuine weddings. In reality, only a handful of prosecutions and convictions occur every year.
As a result of these new investigation powers – which inconvenienced everyone getting married to some extent by imposing additional checks and extending the notice period, and led to a lot of ruined wedding days for innocent migrants and their British or EEA citizen spouses – the Home Office also created a great deal more work for itself. Civil servants had estimated that 35,000 marriages per year would be referred to the Home Office for consideration and 6,000 actual investigations would follow per year.12 However, actual referrals and investigations turned out to be much, much higher. Around 50,000 referrals per year were being made by 2016, around 12,000 of which were delayed by seventy days for Home Office investigation.13 We have no idea how much all this extra work cost the registrars or the Home Office. The declared purpose of the new system and the reason for these costs was detecting and preventing sham marriages, but, again, we have no idea how many more, if any, real sham marriages have been detected as a result. One outcome was that it became harder for all migrants to get married in the Unit
ed Kingdom; but whether this was an unfortunate side effect or formed part of the general deterrent approach to family migration we will probably never know.
Where a relationship is under suspicion, the couple may be summoned to an in-person interview if they are applying for a visa from within the UK. In comparison, applications made from abroad are often just immediately refused, with face-to-face interviews by officials virtually unheard of now. Where an interview does occur, the couple will be separated and quizzed simultaneously in different rooms and by different officials. Pre-arranged questions will be asked about the couple’s morning routine, the layout or furnishings of the bedroom at home, recent social activities, their various relatives and their career history. It is a po-faced, existential version of the old Mr and Mrs game show, but where the ultimate prize for correct answers is the chance to live together in the United Kingdom, and incorrect answers lead to deportation. The slightest variation in a couple’s answers is pounced upon as material to justify a refusal, as is failure to know obscure details of the partner’s extended family or educational qualifications. The fact, so widely known that a game show was built on the premise, that many entirely genuine couples also give incorrect replies to such questions is irrelevant; these are exercises in finding excuses for refusal.