Now the main parties have set out immigration plans, it is clear the election result will impact on many people who wish to live with their family in the UK. At the same time, legal challenges to restrictions of family life including spouse visas and the Adult Dependant Relative route are still progressing through the courts.
The Conservatives will need to consider all measures to control immigration if Theresa May’s renewed pledge to reduce net migration below 100,000 is to be achieved. Their manifesto made clear non-EU migration will be targeted and income thresholds for sponsoring family members will be increased.
“We will…continue to bear down on immigration from outside the European Union. We will increase the earnings thresholds for people wishing to sponsor migrants for family visas.”
In contrast, Labour’s manifesto, which makes no reference to reducing immigration, promises to remove income thresholds:
“We will replace income thresholds with a prohibition on recourse to public funds.”
In most cases, family members already have no access to public funds.
Liberal Democrats and Greens go further in their support for immigration as a positive contributor to the UK. And UKIP have proposed a “one in one out policy” to reduce net migration to zero over the next five years.
If, as predicted by current polls, Theresa May is returned as Prime Minister the future for family migration looks bleak.
Perhaps the only consolation, the Conservaties have dropped their policy to withdraw from the European Convention on Human Rights, at least for the next parliament.
If the Immigration Rules are further tightened then families will increasingly have to rely on their human rights under the Convention – and most likely will need courts to enforce these rights. In the last few months alone, there have been important legal developments relating to family immigration relying on Article 8, ECHR – the right to family life:
Spouses and partners
In February the Supreme Court issued judgment in the case regarding the Minimum Income Requirement (MIR) for spouses, currently set at £18,600 (and more if there are dependant children). The court considered this requirement was lawful for whilst recognising the harshness on families. Although this was a bitter disappointment for many, the judgment gave some hope by stating the best interests of children are not properly reflected in law or guidance and also indicating there should be greater consideration of the family’s financial position, including sources of support other than the sponsor’s income or the savings considered.
The court directed the Home Office to propose new guidance or changes to the Immigration Rules to reflect how children’s interests and other financial support will be considered and adjourned the case to allow this to happen. This process has been interrupted but will need to continue after the election. In the meantime, visa applications where financial thresholds are not met are being put on hold.
If the financial threshold is increased, there will still need to be a consideration of children’s best interests and whether immigration controls are proportionate.
Adult Dependant Relatives
On 4 May a hearing took place at the Court of Appeal relating to the Adult Dependant Relatives (ADR) rules which determine whether sick or disabled relatives can be sponsored to live in the UK.
Since rule changes in 2012, very few visas have been issued in this category because it is almost impossible for the requirements to be met. Families argue this represents a disproportionate breach of family life. The government maintains the additional costs of elderly relatives accessing NHS treatment means the rules are fair, considering the need to protect public finances.
The judgment in this case is awaited. If the court finds the rules are a breach of human rights, it can be expected a Conservative government would resist a return to a more generous policy and the judgment would be further challenged.
Children and parents
Some good news has come from the European Court of Justice regarding the rights of parents of children who are EU Citizens, including British children in the UK.
Up to this point it has been established that parents who are not EU nationals have a right to live in the EU country if the child would be forced to leave the EU if that parent could not remain with them. These have been known as Zambrano rights after the original case and in the UK parents can make an application for a Derivative Residence Card valid for as long as the child is in the UK and under 18. To gain this right, parents have had to show there is no other parent who could care for the child, even if the other parent is not willing to do so.
In this new case, the court decided applications should not be refused simply because there is another parent who could care for the child. Consideration must be given to the best interests of the child and this can include factors such as the emotional ties between the child and the parents and the effect of separation on the child.
As there will be many cases where there is another parent who could, at least in theory, care for the child then this case broadens the right of residence for non-EU parents of EU national children in the UK.
Whether the new government will accept and apply this ruling to Home Office decision making remains to be seen. Recent Home Office guidance relating to EEA free movement rights has been in contradiction with EU law and respect for ECJ decisions is only likely to reduce as the time for leaving the EU approaches.
These rights relate to Citizenship of the European Union their continuance beyond the UK’s membership of the EU will depend on negotiations.
As can be seen, the election result will be decisive for family immigration and if the outcome is as predicted by polls families may be left to battle for their human rights in the courts.