The long held animosity of the British government, especially the outgoing Conservative government towards the migrant community was taken to new heights recently with the announcement and implementation of far reaching changes across many routes of lawful immigration and aimed to fundamentally discourage and drive down the numbers.Like most governments across Europe and elsewhere, the demonization of immigrants and the tightening of immigration control is the prime spot of attack to seek redemption from sagging public confidence and imminent electoral defeat.The termination of the right of post graduate students and healthcare workers to sponsor their immediate family members, the squeezing of the Skilled Occuption Code, the incessant increases in application fees, the expansive and subjective application of the “genuiness” rule and the continuing narrowing of the window to seek redress against unlawful decisions are some of these measures.
The impact of these changes to family visas will be the focus of this brief write up which is not intended to analyse the gamut of the changes in great detail.
The minimum gross annual income set for a person who is a British citizen or settled in the UK or under some other designated immigration categories to sponsor their family members to the UK was increased from April 2024 from £18,600 to £29,000.This minimum income threshold is to further rise to £38,700 by early 2025.The effect of these changes are reverberating across the immigrant community and the government is already facing still legal challenges in the courts to justify the lawfulness of the decisions.A lot of individual who are working hard in the UK and contributing to the treasury and to their communities are already prized out to sponsor their loved ones to live a family life in the UK.Whilst this writer anticipate the mitigation or striking down of this cavalier and repugnant changes by the court or even sooner, by the nearly certain in- coming Labour government,we wish to draw attention to the available and possible ways by which individuals so affected can navigate their way through the process and achieve the desired result notwithstanding the unconscionable intendment of the makers of the new rules to frustrate family reunion.
.
1) LEGAL CHALLENGE: It is plausible for a UK sponsor who can demonstrate ability to maintain and accommodate the intending family members to challenge the lawfulness of the demand for a minimum income of £29,000 on grounds which can include:
i) that the new requirement is unlawful and a breach of the obligations of the United Kingdom under Article 8 of the European Convention on Human Rights which guarantees the right to respect for private and family life and abhors unreasonable interference with same.
ii) Where the interest of a child is affected,it is plausible to argue that the new rule is unlawful on the basis that it did not take into consideration the need to safeguard and promote the welfare of children in line with the government’s duty under Section 55 of the Borders, Citizenship and Immigration Act 2009.A relevant child can suffer unjustifiably harsh consequences as a result of separation from a parent,a situation which the law cited above would not allow.
iii)It is equally auguable that the new requirement is unlawful on the basis that it is discriminatory since it applies only to a segment of the society.
It would be interesting to see how the decision maker would grapple with these legal challenges. It should also be noted that the decision maker is not the final arbiter in the matter as any unwelcome decision from him can be challenged on appeal.
2) GRANTING OF FEE WAIVER: Visa fee and medical surcharge is humongous. A family of 3 may be required to pay in excess of £7,000 in this regard. The immigration rules recognize a process by which an eligible applicant may request for a fee waiver which, if successful will be granted in full or in part. This can drive down costs and can be of particular help to a sponsor who is relying on his savings to meet the financial requirements.
3) RECOURSE TO PUBLIC FUNDS: A well – informed and guided applicant can, if the right facts, evidence and circumstances are well -presented have a family visa granted without the usual or normal restriction of access to public funds. A success in this regard can be of tremendous help to cushion the pressure of high cost of living and in recouping the expenses of the application.
4) EXCEPTIONAL CIRCUMSTANCES: The immigration rules not only prescribed a minimum annual income of £29,000,it also made detailed and strict provisions about what sources and evidence of income is acceptable and which are not. The immigration rules however made provision to allow an eligible applicant who is unable to meet the strict financial requirements to alternatively rely on “a credible guarantee of sustainable financial support from a third party” or “credible prospective earnings” of the applicant or their partner” or “any other credible and reliable source of income or funds”
By reason of the flexibility in the above exception, a well- guided applicant who is unable to meet the £29,000 income threshold can almost certainly find solace under this provision.
5) DISABILITY AND SIMILAR CIRCUMSTANCES: The financial prescription of £29,000 is not required in circumstances where the UK partner is in receipt of one or more of the following:
i) disability living allowance;
ii)severe disablement allowance;
iii) industrial injury disablement benefit,
iv) attendance allowance;
v) carer’s allowance;
vi) personal independence payment,
vii)Armed Forces Independence Payment or Guaranteed Income Payment under the Armed Forces Compensation Scheme;
viii) Constant Attendance Allowance, Mobility Supplement or War Disablement Pension under the War Pensions Scheme;or
ix) Police Injury Pension.
Though no financial threshold is applicable, there is however the requirement to provide evidence that the UK sponsor can maintain and accommodate themselves and applicants adequately without recourse to public funds.
In summary,it is possible for family visas to be granted by avoiding the arrows aimed to frustrate the reunion.There are several items in the toolbox and an applicant who has the support of an experienced and competent advisor will find the one that fits.It is worthy to point out that the requirement of £29,000 is fixed and remains unchanged and unaffected by the numbers or size of the family unlike the old order which prescribed a minimum gross annual income of £18,600 but calibrated to go up for every family member that is added.
An interested or affected person can get in touch with us for necessary assistance and support.
Eddie Onyeka esquire