Statement of Changes in Immigration Rules

Baroness Smith of Basildon Excerpts

Tuesday 23rd October 2012 Lords Chamber

Moved by

[Baroness Smith of Basildon]

That this House regrets that notwithstanding welcome but limited measures to ensure the deportation of foreign criminals and tackle sham marriages, and notwithstanding the importance of greater protection for the taxpayer, the Government have not demonstrated that the specific minimum annual income requirement which has been introduced through the Statement of Changes in Immigration Rules (HC 194) is the most effective way to protect taxpayers and deliver fairness for UK citizens who wish their spouse or partner to settle in the United Kingdom.

Relevant document: 6th Report from the Secondary Legislation Scrutiny Committee

[Baroness Smith of Basildon]

My Lords, I should say at the outset of this debate that we support the Government in their efforts to address and manage levels of immigration to this country and to make it easier to deport foreign criminals, but my Motion of Regret is on the specific aspect of HC 194, that part of it which sets an income threshold of £18,600 for British citizens and people settled here who wish to sponsor their spouse or partner to come to live with them in this country and of £22,400 for couples with children. I would also like, during the course of the debate, to raise with the Government the issue of Article 8 of the European Convention on Human Rights—that is, the right to respect for private and family life—and the Government’s proposal to find greater legal clarity by balancing Article 8 with public interest considerations.

On income threshold, of course it is right that if an individual wishes to bring their family to settle here in the UK, they should not assume that the state will support them. That is why it is already a requirement for an individual to demonstrate that they have access to sufficient funds at a level that will put them in a similar position to someone on income support here in the UK, so that they will not seek recourse to benefits. Unlike a blanket income threshold, the current position allows authorities to take into account the different ways in which a couple may be able to demonstrate that they can meet that requirement. For example, currently, the joint income of a couple can be taken into consideration when assessing whether their funds are adequate, as well as the likely employment prospects of one or both of the parties. Couples are also able to use an undertaking by members of their family in the UK to provide them with adequate funds for maintenance as evidence that they will be able to support themselves without recourse to the state.

I understand that that leaves a level of discretion in decision-making, and we support efforts to provide greater clarity in the rules, to eliminate opportunities for abuse, but we must also recognise that, nowadays, we live in a world where it is commonplace to travel, to study, to do business and to work abroad, so it is only natural that people from here in the UK will travel, fall in love and form long-term and permanent relations across borders. Family circumstances are not always as straightforward as government policy assumes. Many in your Lordships’ House will know of couples of different nationalities, friends and family members, who have established long-lasting relationships through living and working abroad.

When my Motion of Regret was published, I received several letters by e-mail and fax from those who have been affected by government policy. I do not know the circumstances of all those who have contacted me, but as a generalisation, I would class those who have contacted me directly as strivers—a term that the Prime Minister has used. They are people who work hard to provide for themselves and their families, not rich or wealthy people, but often people who work hard in useful jobs on wages lower than most of us in your Lordships’ House have come to expect in our working lives.

I want to refer to a couple of examples that I think may help your Lordships’ House in considering the issue. I shall call one family Mr and Mrs M. They are a married couple. She is from a Commonwealth country; she is Canadian. Both of them have children from previous marriages. They married in 2005 in the UK and lived in the UK for a year, when she went back to Canada to go to university to complete her education, which would no doubt lead to a better job. As she puts it to me in her correspondence, it was,

“short term suffering for the long term benefits”.

Her husband visited Canada a couple of times and they then decided that they would settle in Canada. For a number of reasons, not least being his responsibilities to his family here in the UK, including his parents, who were getting old, he moved back home in 2010 and they agreed that she would follow him once he found work. In the mean time, his wife sent him money from her earnings in Canada to buy household items for the new home that they were going to set up here in the UK. Again, these are people trying to do the right thing in seeking to support themselves. Alfred got a job; he was doing well and she started to complete the visa application form. However, in July 2012, their world just fell apart because he did not earn the £24,800 that the Government said he had to before his wife and two children could join him. His father was a miner in Wales; he had a low income—both were proud men and proud of their work. They estimated that his wife—when they thought she was going to join them—would get a job in the region of £18,000 to £24,000. Yet despite all their planning, and all their efforts to provide for themselves, they have fallen foul of this rule and are now living on different sides of the world.

There is another lady who contacted me, Miss BF. She and her non-EU partner plan to marry in December 2012. She wrote:

“I do not earn £18600. I work part time as a healthcare assistant for the NHS. I am unable to work full time as I have a 14 year old son … If I worked in London I could earn the £18600 however the cost to rent in London would probably be triple the cost of my current mortgage. The income threshold does not allow for variations in circumstances. It does not allow for the earning potential of single parents, or for women in general. Our wedding plans are now on hold”.

So no regional variation—or, again, partner’s income—is taken into account.

Mr S—a highly qualified man who has worked in government in the past—also outlines in his letter to me the perverse incentive of an absolute threshold. He lives some distance from London. He says:

“I’m desperately trying to find a job that would make the required £18,600 a year. In this area, that scenario is a difficult one, so I’m looking for work in London. If I secure such a job, earning the required salary, it’s likely that most of this would be spent on the high costs associated with living in London. Yet the government deem this ok. However, I could probably find a job in this area earning around £14-15,000 and would have more disposable income to support my family whilst having the assurity of living with my parents in the short term.”.

All these are people trying to do the right thing—trying to support themselves. As there is now no flexibility in the system, but a very blunt policy of a blanket income threshold, the rules can unfairly penalise couples like Mr and Mrs M, and people like Mr S and Miss BF. Can the Minister confirm that we have members of the Armed Forces serving overseas who, if they were to marry somebody they met on duty overseas, would have an income that would fall below the level expected by the Government and who therefore would not be allowed to bring their new wife or husband back to the UK with them?

People who are trying to do the right thing and who are strivers—and the Prime Minister has used both those terms—and who would so easily be capable of supporting themselves and are determined to support themselves without relying on the state, are being turned away. We need a system that delivers protection and fairness for existing tax payers, but also fairness to families like this who will ultimately be net contributors to the system.

This is about the right to family life for British citizens and those permanently settled in this country. That is not an absolute right but one that is rightly qualified by the public interest test. None the less, it is of the utmost significance to the lives of many British citizens who wish to settle their families in the UK. Did the Government properly and adequately examine all the options for the most effective method of delivering fairness to both families and taxpayers? We contend that the Government have failed to do so. The Government have relied on the response of the Migration Advisory Committee for justification of the policy and the level at which the income threshold has been set.

So, what was the question that the Government asked the Migration Advisory Committee, which provided the evidence that this was the correct policy? Did the Government ask: “Is an income threshold the most effective way of delivering fairness for the taxpayer and families and preventing abuse of the system?”. Perhaps the Government asked the Migration Advisory Committee: “What would be the best way of ensuring that those bringing a spouse or dependent children into this country would not have recourse to public funds?”. It was neither of those questions. Instead, the initial question that the Government asked the Migration Advisory Committee was framed in a way that made it clear that they had decided the policy before asking the question. It was,

“what should the minimum income threshold be for sponsoring spouses/partners”.

The policy of a single income threshold had been decided, and the question was asked in such a way that it could only be answered with an assessment of the amount. The Government pre-empted any independent advice from the Migration Advisory Committee on what would be the most effective and fair process for determining adequate means of support without reliance on the state because they had already unilaterally decided on an income threshold policy.

--- Later in debate ---

[Baroness Smith of Basildon]

My Lords, I will reflect on the Minister’s response and will read and consider his comments in Hansard. However, I have to say that at this stage I am disappointed by his response; I wonder if he took on board any of the comments around the House about the devastating impact that this threshold is having on so many families. All of us in your Lordships’ House understand the need to tackle abuses—this was said to the Minister—but this measure goes beyond that and I do not think, as other noble Lords have illustrated, that it actually achieves the Government’s policy objectives.

The Minister said that it more effectively reduced the burden on the taxpayer and was fair to families. Based on the examples he has heard this evening, however, it does not seem a very effective way to protect the taxpayer. The issue is not just the level of the threshold but the principle of the threshold. He claimed that one of the questions I asked was what happened if somebody lost their job. That was not the question I asked at all; the point that I was putting to the Minister was that a threshold is an inadequate way of making an assessment, as someone could be above that threshold and then lose their job but still have the right to remain, since a judgment was made at one point in time based on a person’s income, rather than on a package of measures that was available previously.

I appreciate that he cannot comment on individual cases, but Mr and Mrs M, the lady from Canada and her husband from Wales; the lady who was the NHS care worker; and the clergymen referred to by the right reverend Prelate the Bishop of St Edmundsbury and Ipswich who wanted to come or bring their spouses to this country will all listen to the Minister’s comments with some dismay.

I appreciate that he was not able to answer all the questions but I was disappointed that he answered so few. I mentioned one to him about the perverse incentive where an individual would have to go and live in a more expensive part of the country to see their income increase, even though their costs would increase, including their rent or mortgage, and their disposable income would fall. That would qualify them to be able to bring their spouse into the country because they had a higher income level. That is a perverse incentive, to have a lower disposable income. The Minister did not comment on that. Nor did he comment on any of the examples—I am sure that this was not intended—of Church of England clergy’s partners being excluded from the UK. He also said that the Migration Advisory Committee supported the level but my understanding is that the committee was asked what the level should be; it was not asked to comment on the proposals generally or on whether this was the most appropriate way to achieve the Government’s objective.

I was especially hoping that the Minister would respond on the following issue that I raised. The Migration Advisory Committee, in its response to the Government, said that, of those who satisfied the current criteria of being able to show they had access to sufficient funds to support themselves and their families, 45% would no longer be eligible under the new criteria to have their spouses come to this country. I asked him how many of those who were eligible under the current procedures would not be allowed under the new rules and have since claimed access to public funds. He has not answered that. The answer that he gave was that 267 individuals now claim some kind of public support or assistance, but he was unable to tell us how many of those had come to this country through the existing rules on family visas. If he does have that figure, it would be extremely helpful to have it. I suspect that it might not be available but it might have been provided to him. It would have been a more useful figure and the one that I asked for.

Obviously we understand the need to ensure that the system is not abused, but I fear that what is being done here today will not protect the taxpayer in the way that the Minister seeks, and it certainly does not protect the family. I beg to withdraw the motion.

Motion withdrawn.

House adjourned at 7.03 pm.