The All-Party Parliamentary Group on Migration (APPG) recently published its report on the family migration rules that were introduced in July 2012. Key findings from the report can be summarised as follows:

  • British citizens and settled persons, even those in full time employment have been separated from their non-EEA partner and in some cases their children because of the income requirement.
  • British citizens and settled persons have been prevented from returning to the UK with their non-EEA partner and children because of the income requirement.
  • Some children are facing an indefinite separation from a non-EEA parent due to the income requirement.
  • The sources of income which will be taken into account to assess the income requirement may not reflect all the resources available to a family.
  • The adult dependant relative route has effectively been closed.

One has to restrain the urge, in response to these ‘findings’, to say, ‘well what did the Government expect?’. The family migration rules of July 2012 were badly drafted, difficult to understand and in no way rooted in reality. They operate in a world where the British/settled spouse is always the breadwinner; family members never provide reliable financial assistance; and only couples with £62,500 in the bank can financially support themselves from their savings.

The APPG has made a number of recommendations aimed at tackling some of the more distressing findings, including an independent review of the minimum income requirement. It has also recommended that this income requirement be reviewed to account for any discriminatory impact and that decision-makers fully discharge their duty to consider the best interests of any relevant children when deciding applications.

European Law To The Rescue - Surinder Singh

While the Government mulls over these proposals, what are divided and excluded families to do? For an increasing number of families, the answer lies in Europe.

It has long been recognised that families applying under the regime in place for European nationals in the UK must satisfy a less stringent set of rules than British nationals. The difference between the provisions of the Immigration Rules and EEA Regulations has become starker post-July 2012 and the introduction of the family migration rules. Of course, it is not as easy as just picking which rules you want to apply under. As a general rule, British citizens living in the UK cannot have recourse to the EEA regime. This is because, in order to benefit from these rules, you must be ‘exercising treaty rights’ in an EEA country. An EEA national cannot exercise treaty rights in their country of nationality; they must trigger their rights by moving to another EEA state. The most common ways of exercising treaty rights are as a worker, a self-sufficient person, a self-employed person or as a student.

So, if Mr X, a British national, is not exercising treaty rights in the UK, how can he use this system to enable Mrs X, a non-EEA national, to live with him in the UK?

Mr and Mrs X can utilise the finding in the Judgement of Surinder Singh, which determined that if a UK national moves to another EEA state and lives with their non-EEA partner and exercises a treaty right, they have effectively activated their EEA rights and can rely on these both in that EEA state and when they return to the UK.

Now, for those in steady employment in the UK or undertaking a course of study, this may not be practical. Similarly, uprooting children from their schools and their homes is not ideal but this does offer an option for those falling foul of the irrational July 2012 rules.

The popularity of this alternative option has recently caught the attention of the press with a lengthy feature devoted to it on a recent BBC’s Newsnight programme.

In response to that Newsnight feature, the Immigration Minister Mark Harper advised that this route ‘would not apply if someone went abroad to a member state for a short time just in order to circumvent the immigration rules.’

However, the Home Office guidance issued to caseworkers considering applications under this route confirms that:

“It does not matter if the only reason the British national went to another Member State was to exercise an economic Treaty right was so that he / she could come back to the UK with his / her family members under EC law.”

It is therefore open to families to use this option as an alternative route to unification in the UK, even if the goal of living together in the UK is the sole purpose of using the route.

Family members entering the UK under the provisions of EC law will need to ensure their British partner continues to exercise treaty rights throughout their time in the UK in order to continue to qualify and to ensure they obtain permanent residence the end of the five years. However, while the British partner must exercise treaty rights, they need not earn a certain amount of money or meet any criteria with regard to maintenance and accommodation. There is a nominal application fee (as of 1st July 2013) for in-country applications, considerably less than the fee for an application made under the UK Immigration Rules. The Secretary of State is also prevented from imposing any of their General Grounds of Refusal on someone applying under European Community law.

By forcing families to look for options outside the UK immigration rules to live together in the UK, the government has lost control over the very process and system they have sought to exert their influence over and more strictly regulate. Just another reason it should take the APPG’s recommendations seriously and oversee a return to a more rational and fair system of family migration, one which encourages families to opt in, not to opt out.