The families of UK citizens denied the right to live in Britain because of the minimum income visa requirement for non-EU partners are to challenge the rules in the supreme court on Monday.
They argue that they have been denied the right to a family life by the rules condemned by migrant rights groups and family campaigners, including the children’s commissioner, Anne Longfield, who has said rules are creating “Skype families”.
British citizens must earn more than £18,600 to bring over a non-EU spouse, rising to £22,400 if they have a child who does not have British citizenship, and an additional £2,400 for each subsequent child.
Critics argue that the law, introduced in July 2012, penalises 43% of the UK population and means British citizens in full-time employment on the minimum wage cannot enjoy the right to live with their families in the UK.
The supreme court challenge, brought after the case was dismissed by the court of appeal last year, has three appellants: two of them, Abdul Majid and Shabana Javed, are British and both married to Pakistani nationals; and the third is known as MM, a Lebanese refugee.
Before the court of appeal dismissal, Mr Justice Blake had ruled at the high court that the financial requirements were “a disproportionate interference with a genuine spousal relationship” and suggested a minimum income closer to the minimum wage would be more appropriate.
In September, research by Middlesex University and the charity the Joint Council for the Welfare of Immigrants found about 15,000 British children are either separated from one parent or forced to grow up outside the UK because of the rules.
In response to the the study, Longfield said: “We are not talking about having unrestricted access but we need to put the heart back into this policy and consider the profound impact the rules have on this group of British children and their families.”
Last year, the Conservative thinktank Bright Blue called on the government to change the rules, noting the “significant contribution millions of low-paid Britons make to our economy and society, as well as the value of having families living together in the same country”. It recommended family visas also be granted as long as the British partner had paid income tax for the past two-and-a-half years.
The Home Office said it was determined “family life must not be established here at the taxpayer’s expense.The level of the minimum income threshold reflects the income at which a British family generally ceases to be able to access income-related benefits.”
Sonel Mehta, the founder of the campaign BritCits, which gives support to divided families, said the government was keen to crack down further on family reunification because it was one area where policy was having a real effect on keeping immigration numbers down.
“Families are an easy target, they aren’t big business or universities that can do big lobbying to get in students or workers from abroad,” she said. “You can’t replace your husband or wife with a British substitute if the visa is denied.”
More than 40 people from BritCits plan to attend the supreme court hearings this week, many of them who have sons and daughters forced to live abroad or have non-EU spouses cut off from their children. A ruling is not expected for a number of months.
Don Flynn, director of Migrants’ Rights Network, said he hoped at the very least that the supreme court would acknowledge that there should be more flexibility for individual cases.
“In any case I have ever been involved with, the Home Office has not once exercised any discretion. You have to earn over that amount or it will be refused. I would hope the supreme court will acknowledge that, perhaps draw up some guidelines for when that discretion should be exercised in order to make sure the right to a family life is protected,” he said.