Partnered Post/Reviews

Another unfair strike against expats?

12 Comments 13 June 2014

There are all kinds of immigrants and expats and it must be difficult to create legislation to cover all situations but sometimes the legislation is so far off the mark that feels truly obstructive to the people who are trying to live honestly and fairly in the country of their choice. Mario Vitanelli has written a post for The American Resident outlining one such instance for British citizens wishing to settle in the UK with a foreign partner.

Last summer, publications around the world began sharing a horror story. Thousands of British citizens were being forced to make a decision no one should ever be asked to make. The questions was which mattered more to them, their country, or their families.

One such person was Gillian Hudson. After meeting and marrying Japanese national Tsuyoshi Okuma in London, she received an invitation to attend post-graduate studies in Tokyo. Eight years and two children later the couple decided it was time to return to Britain. Unfortunately, the immigration reforms that went into effect in July 2012 rendered that effectively impossible.

Under the reforms, British citizens married to non-European Economic Area nationals have to sponsor their spouse in order to bring them into the country. As part of the requirements to qualify for entry, the British national of the couple has to demonstrate that he or she has employment paying in excess of £18.600 a year, and that this position has been held for a minimum of six months prior to application. If there are any children involved, the annual income has to be even higher, with the first child adding an additional £3.800, and any others increasing the cost an additional £2.400 each.

For Hudson, this was an impossible proposition. She summed up her problem in an interview with the British Chamber of Commerce in Japan in 2013. “With two kids I will need to secure more like £25,000 per year, after a break from the UK job market for eight years, possibly longer. And of those eight years, two were spent studying and two as a full-time mum and housewife.”

In order to bring her family home with her, this mum and housewife would somehow need to secure a position earning more than almost 2/3rds of all British wage earners did in 2012, the year the bill was passed. Even if this was possible for her, she would be unable to file paperwork until she had had been at the job for six months. Typically it takes an additional six months to receive a decision on the application. Hudson would have to be separated from her husband and children for a year, with no guarantee that at the end of it the application would be approved.

Hudson’s story is far from unique. Chris Hall, a native of Swindon met his wife, Sarah Pitard while the American woman was studying in Britain. Hall did have an income sufficient to meet the requirements, but because much of his income comes through freelance acting work the UK Border Agency was unable to verify the income. When they notified Pitard of this complication she discovered she had 48 hours before her student visa expired. In order to avoid being deported and banned from the country for ten years she was forced to flee to Paris overnight, with Hall joining her in her flight.

The legislation which has created this situation was put in place by the Cameron government as an effort to protect tax payers from having to support immigrants that were unable to support themselves in the UK. The actual impact has been to effectively exile thousands of British citizens and their families. Both Mr. Tsuyoshi and Mrs. Pitard are college educated individuals that could be expected to contribute to the struggling British economy. Instead their spouses have been forced to abandon Britain and live abroad.

Many had been hopeful that the new bill on immigration reform would address this injustice. However, the bill currently completing its passage through the House of Lords has taken almost the opposite track. Far from easing the burden on British spouses of foreign nationals, the new immigration reform bill has moved to make it far easier to disqualify married applicants as being in “fraudulent” marriages and reduce the number of appeals are available for those unfairly denied entry.

This is not to say that no one in Parliament has made any effort. The Rt Hon Baroness Hamwee proposed Amendment 47, which would reduce the required income level to match the minimum wage, and which would take into consideration the amount of income likely to be contributed towards that by the sponsored spouse and not simply the sponsor.

The amendment faced considerable opposition from the Government. In responding to the amendment, the Rt Hon Lord Wallace of Tankerness argued that “Employment overseas is no guarantee of finding work in the UK, and the previous and prospective earnings of the migrant partner are not taken into account in determining whether the threshold is met.” He further insisted that the current financial cap was necessary for the wellbeing of not only the British taxpayer, but the immigrant as well. “The levels of income required are those at which a couple, once settled in the UK and taking into account any children, generally cannot access income-related benefits. The policy is also intended to ensure that family migrants are well enough supported to promote their integration into British society. The Government consider this to be a fair and appropriate basis for family migration that is right for migrants, local communities and our country as a whole.”

Under pressure from the Government the amendment was withdrawn, though the Rt Hon Baroness Hamwee has vowed to bring up the issue again in the future.

Given the continued hard-line stance being taken by the Government, and the further reinforcement of this in the current immigration debate, it seems likely that British citizens with non EEA-born spouses will continue to be forced to make a choice between family and country.

For Chris Hall and Sarah Pitard the story finally met a happy ending when they found a loophole allowing any British citizen who worked a legitimate job in the EU for at least three months to emigrate with their spouse. Though many consider it a cheat, Chris remains defiant. “If it is a cheat then we will cheat so that we can stay together for the rest of our lives.”

For Hudson, the desire to return remains unfulfilled. “We have always planned on moving back to the UK. It’s important for our children to experience life in both Japan and the UK in order to fully understand who they are, form relationships with both extended families, and have enough language competence in both Japanese and English”. Unfortunately, with the current bill being debated not addressing this concern, she remains in Japan with her family, unable to return home. The impact on her life has been considerable. When asked about how much hope she is holding out her response was simple and to the point. “I feel exiled from my own country.”

Mario Vitanelli strives to be a well-informed political enthusiast and global-financial expert. When he succeeds, he’ll be sure to let everyone know. In the meantime he works with QROPS Group and writes on international finance. When not behind his keyboard he enjoys cooking and traveling with his family.

 

Have you experienced something similar? It would be interesting to read your stories!

This is a Partnered Post. For information on what that means, please click here.

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12 Comments so far

  1. Iota says:

    What a dreadful situation to be in. It would feel very trapping not to be able to return to the UK with your spouse and family. Thanks for this post.

  2. Expat Mum says:

    Oh great. I did not know this. Although my husband earns more than enough to support us should we return to the UK, I do not.

  3. Expat Mum says:

    I dug further into this, going back to the original legislation, and have a few questions which I was hoping Mario could expand on. (Can’t find a contact address.)

    Ih the legislation, https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/300961/Appendix_FM.pdf

    it seems to suggest that both the applicant (the Brit) and partner’s income and savings will be taken into account. Scroll down to pages 6 and 7, E-ECP 3.2 and 3..

    Thanks.

  4. Mario says:

    It really is a rather unfortunate situation, Expat Mum. Unfortunately the Lords quashed the effort made by The Rt Hon Baroness Hamwee in her attempts to address this problem, pointing out a flaw in her language, then failed to provide an alternative solution. So for the time being this means that many expats are having to accept a form of exile.

  5. Mario says:

    Hello Expat Mum.

    The key is specifically in E-ECP 3.2 (a).

    “E-ECP.3.2. When determining whether the financial requirement in paragraph EECP.
    3.1. is met only the following sources will be taken into account-
    (a) income of the partner from specified employment or self-employment, which, in
    respect of a partner returning to the UK with the applicant, can include specified
    employment or self-employment overseas and in the UK;”

    Note that in this only the partner’s income is taken into account. Nowhere in (a) does it mention the applicant’s income. (b) does include the applicant’s pension funds, and (d) does refer to “other specific funds” the applicant has access to. These are covered in E-LTRP 3.2

    E-LTRP 3.2 (b) (page 13) fails to clear things up easily. It does declare that the applicant’s income can be taken into account. However, note that E-LTRP 3.3 says this holds true only when the partner is able to draw on certain disablement benefits and is still able to demonstrate an ability to sustain the partner, applicant, and any dependents without using public funds.

    So ultimately it still comes down to the UK born partner’s income for the most part. So for a UK born stay at home mum she has precious few options.

    Thank you for your question!

  6. Expat Mum says:

    Hmmm…but it says, on the link, (to a government web site) that it’s the current Immigration rules.

  7. Mario says:

    Correct. These are based on the reforms put in place in 2012.

    However, the new Immigration Reform 2014 Law was only given crown assent on the 14th of this month. You can find it here:

    http://www.legislation.gov.uk/ukpga/2014/22/contents/enacted/data.htm

    This is the act that The Rt Hon Baroness Hamwee attempted to amend to address the difficulties created by the Immigration Reform Act 2012. Unfortunately, the act as assented to does not address this issue satisfactorily so the passages you cited will remain in play.

  8. KimberlyP says:

    I am in the process of applying for my UK Visa to reunite with my British husband of just under a year. This income threshold has caused me the most stress as we didn’t know if he met it or not. My income is well above this, but the border agency doesn’t care. I plan on living in the UK, being a productive member of the community, shopping locally, paying taxes, yet they don’t consider my income? Thankfully my husband met the requirement so we are moving forward with the process and I am blogging about my experience. This post is very sad and very informative. I understand what they are trying to prevent, but good hard working people are being caught up in this nonsense.

  9. Mario says:

    Hello Kimberly.

    Well said. Certainly their intentions were above board, but the results have been anything but.

    Let us hope that they correct this in the future.

    Good luck with your new life in the UK!

  10. Ken Tapsell says:

    I am a UK citizen at present residing with my American wife and 6 year old daughter. I, of course, hold a UK/EU passport as does my daughter. My wife holds an American passport. We were planning to stay here in the USA for another 3 or 4 years, then move to the UK. I am retired and receiving a pension which is below the stated requirement of UKP18,600 plus UKP2,400. Does this mean I would be forced to come out of retirement and find a job to reach the required level of income? I should also mention my wife is a registered nurse and intends to work if and when we do get to the UK.
    We would appreciate comments on this please.
    Thank you.

  11. Annette says:

    I find it hard to believe that people don’t research this stuff before they make life changing decisions. My daughter was born in Jamaica in 1979 to British parents and was given her nationality by Registration. Included in this is the fact that she could not marry a person from outside the EU and (spouse) would not be automatically given British citizenship. I made sure my son was born on British soil = immigration rules change all the time.

  12. Great post. And a crazy piece of legislation.


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