C4/2013/2086: MM -v- Secretary of State for the Home Department

By now, many of you are aware that the case I am referencing is the reason why 3,014-and-counting Family Visa Applications are on hold (partners, parents, children, spouses, adult dependents, etc…. are all effected). I’ve touched on this case briefly in previous posts, but since we’re still waiting to hear a verdict, I thought now would be as good a time as any to go into some more depth and explain the hows and whys of this case as someone who has been effected personally.

In 2012 new rules regarding immigration of non-EEA (European Economic Area) Family Visas were established (among others, but we’ll focus on just the Fiancé/FLR/SET visas for this post). One of these rules was the requirement that the sponsoring individual be earning £18,600 per year to sponsor one person to come to the UK, the rate increasing for each additional person they need to sponsor.

Ignoring the fact that the Family visa application route has, for its visas, “No recourse to government funds,” lawmakers and MPs claimed that the income requirement was necessary to ensure that any family wanting to settle in the UK was self-sufficient and not a drain on the UK tax pocket.

Basically, they invented a problem that didn’t exist (because migrants under the family visas wouldn’t be able to apply for government funds anyway, making it a moot point) while at the same time delivering a “solution” to said non-existent problem. Raging yet? Don’t worry, it get’s even better.

The income requirement was set at £18,600 for all of the UK, completely ignoring the fact that women, ethnic minorities, those who are retired, partially or fully disabled and those who are young (anyone under the age of 40, really) make less than your white, middle-aged, able bodied, male. Worse still, there are parts of the UK where the average income doesn’t even reach £18.6K. Translation: 47% of the working population in the UK does not earn enough to sponsor one person from outside of the EU.

But don’t despair, said the Home Office, if you don’t make enough in a year you can supplement your income with savings! …Yeah, forget it. They only count savings IF you have a minimum of £16,000 in your savings account for 6 Months, and even then that’s not enough because they apply a mathematical formula to calculate the offset you need to meet on top of that. In short: If you earned £17,600 per annum, you fall short of the threshold by £1000. Therefore the amount of savings you must show to meet the spouse financial requirement is: £1000 x 2.5 = £2500. Add this figure to £16000 and the grand total needed is £18500 in savings.

£16,000 for 6 months in savings & 2.5xOffset? Ain't Nobody got time of that!

So now we’ve established that the ones that came up with these rules are completely divorced from reality (probably lost forever in the merry old land of Eaton, but w/e), it just gets better and better; why? Because my husband did meet the income requirements and we’re on hold anyway.

How’d that happen? Your guess is as good as ours – as I have stated several times over the past year in this blog – even our Solicitor is confused by this one.

Which brings us to the case in question. Now, the original ruling was made back in July of 2013 and while it didn’t strike down the income requirement outright, they did say the amount it was set at was “unjustified and disproportionate”, of course – as we all know – the Home Office appealed against this ruling and that takes us to where we are now.

Following the path of the court battle thus far, we have gone from the High Court to the Court of Appeals and, very likely, this will be dragged all the way up to the Supreme Courts before there is any real closure.

That means that, while we can expect to hear something within the next couple of months from the Court of Appeals in terms of their ruling, if they do not side with the Home Office, UKBA has already declared that they Will appeal again and keep escalating it until they can’t go any further.

So 3,014+ families are stuck in a legal limbo that I don’t even want to think about how long it will take before we see the end of it. What can we do about it? If you are in the UK, you can write to your MP or to members of the House of Lords; you can also send out FOI (Freedom Of Information) Act Requests since the Home Office is stubbornly refusing to disclose any more than they absolutely must. Of course, there are also support and advocacy groups and protests/marches that one can also attend and writing to your local news groups to help spread the less-reported darker side to the Immigration coin.

As of writing this, we received through the post the answer from the Data Protection Unit of the Home Office regarding our Subject Action Request. I haven’t taken any photos of it yet, or even opened it – I’m just staring at this thick envelope right now, wondering just what they have to say for themselves. It kind of worries me, looking at it; not for any particular reason, but simply because anything from UKBA invokes feelings of irrational terror: I am, in short, HomeOfficePHOBIC.

Tonight, we’re going to turn the lights down low, maybe light a couple of candles and my husband and I are going to sit down and cling to each other as we read what they have to say. Afterwards, for good or ill, I will be forwarding the information on to our Solicitor.

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2 thoughts on “C4/2013/2086: MM -v- Secretary of State for the Home Department

  1. Hi there, I’m a fellow American living in the UK. I think your blog is excellent in terms of exposing the absurdity of the UKBA. I was reading this particular blog entry and I thought it might interest you to know (if you don’t already) that the UKBA isn’t particularly interested in honoring their own rules and regulations with respect to ways to meet the £18,600 financial requirement. My husband and I have just been embroiled in an 8 month battle with the UKBA because we applied under Category G to meet the financial requirement; a category listed clearly on the FLR(M) application and referred to extensively in the UKBA’s annex, which none of them seem to have bothered to read.

    If you’re unfamiliar with Category G, according to Annex FM Section FM 1.7, subsection 9.2.1.: ‘Where the applicant’s partner is in self-employment, or is the director of a specified limited company in the UK, at the date of application, they can choose instead to rely on Category G. This allows them to use an average of the income received in the last 2 full financial years to meet the financial requirement.’ Then subsection 9.2.2 states that the ‘average’ of the income received in the last 2 full financial years in Category G refers to the mean average.

    Also, according to subsection 9.3.5.: ‘Income under Category F or Category G can be combined with income from salaried and non-salaried employment, non-employment income and pension income in order to meet the financial requirement. However, unlike with other Categories, these sources of income must fall within the relevant financial year(s) in order to be included. Under Category F or Category G, all income must fall within the financial year(s) relied on. For example, to count income from property rental the income must have been received during the relevant financial year(s), though the property must still be owned by the relevant person at the date of application.’

    My husband and I utilized this category because during the previous year where he was just starting up his freelance business after being contracted on a film and we also lost a baby and in the end, the earnings weren’t great; he only made just over £15,000. The year prior to that, however, my husband made £42,000. It made complete sense to apply under Category G since the mean average of those two years’ income was way above £18,600.

    Starting in late January, however, we had to embark on that 8 month letter-writing battle with the UKBA because shortly after our submission, they sent us a dubious letter not outright rejecting the application, but rather threatening that the application ‘falls to be refused for not meeting the minimum financial requirement’. Things became more and more surreal as we wrote, our lawyer wrote, and eventually our MP wrote to them demanding that they clarify why the application (clearly) wasn’t actually being considered under Category G, when it was applying in that category which enabled us to exceed the financial requirement. We even sent them a copy of their own annex, with the relevant sections highlighted and, yet, they just kept repeating that we didn’t meet the financial requirement, whilst making NO references to Category G or why we might not be eligible for the category.

    It was clear that a mistake of some sort had been made, but they wouldn’t pony up to it. They appeared to be so scattered and disorganized, one case worker even wrote to us explaining that we just needed to wait for the High Court’s decision on the financial minimum matter, but that everything would work out fine eventually, since we ‘have a child who is a UK citizen’. Apparently the cretin couldn’t be asked to READ over our application where we explained that our child had died during the previous year, or LOOK at his death certificate we sent along with his birth certificate. That was the point at which we got our MP involved because we knew no one was steering that-there ship.

    In the end, it was during the middle of last month when we were, via the lawyer and MP, sent some weird notification from the UKBA, STILL not answering our queries concerning the omission of consideration under Category G, but stating that they would consider our application as if it had been submitted on the 1st of August, and that we should now submit last year’s financial data as evidence to meet the £18,600. We thought it might be some sort of trick, but to tell you the truth, it sounded as if someone there realized that they had made a mistake but didn’t want to admit to it and wanted the whole thing to disappear. Lucky for us, this most recent financial year we’ve evened out and easily met the financial minimum, so we went ahead and reluctantly sent further evidence which resulted in a suddenly swift stamp of approval on my visa. But on principle alone, we find it reprehensible that their application and annex both make references to a financial category that the UKBA seemed hell bent on not acknowledging or honoring. It’s terrifying, how much power they have while simultaneously having no accountability and such poorly trained case workers.

    We feel as if this situation still isn’t over because in another 2.5 years we’ll have to reapply in the FLR(M) category, and who knows what will happen next? It’s terrible having to live like this and people who are hell bent on immigration reform seem totally clueless to the antics and disorganization of the UKBA, and also how this financial minimum requirement actually infringes on the basic rights of so many UK citizens to have foreign-born spouses and partners based upon an arbitrary financial hurdle which a good number of citizens cannot manage to leap over. I mean, we actually met the financial requirement and they didn’t get it right. But what about the thousands who flat out couldn’t meet the requirement? The whole thing is a hot mess and I sincerely wish that citizens would spend at least as much time demanding reform for the UKBA as they do demanding reform on immigration policy.

    1. Hi, first of all: thank you so much for reading Transplant Monologues and thank you for sharing your experience with the UK Home Office. Secondly, you have my immense sympathy for the loss of your child.

      My husband and I are familiar with the UKBA’s circle-jerk practices. As my husband’s income was and is a combination of regular employment, self-employment and sole-trader employment, we’ve also come to many of the conclusions that you and your spouse have (i.e. that the Home Office has a poor reputation for following their own rules).

      I’m very happy to hear that, despite all of this, your application was finally approved. We have tried contacting our own MP but they have been contemptuously callous in their wholehearted support of the current immigration rules as they stand and outright have refused to even advocate for our cause. I am grateful to all MPs that run contrary to the example ours set forward.

      I wish that I could offer more support or reassurance to you, but at this current moment in time I feel that you are very right to be anxious and worried about what may come down the pike two and a half years down the line when you apply for your second FLR(M) Visa.

      More than what you have already highlighted there is the fact that with the newest change to the immigration laws regarding rights to appeal, they have removed the right to appeal decisions that have been made incorrectly (you can find an article highlighting this on Freemovement wherein they showed that refusals jumped from 19% in 2012 to 25% in 2013). Without any accountability, ECOs (Entry Clearance Officers) are more and more likely to refuse for the sure jerk-wad joy they get from making people in the Family Visa category cry.

      It is immensely frustrating how few people in the UK seem to grasp that the rights of immigrants are also directly tied to their own rights as citizens and as human beings. The lack of knowledge about what families are experiencing plays a huge part in this; if the media reports anything at all, they completely gloss over the family visa route, choosing instead to pander to the kind rhetoric (not even strictly where we migrants are concerned, either) that only serves to drive an ever-deeper wedge between minorities and the privileged few.

      It is my honest believe that, if the UK public really knew and understood the degree in which their basic human rights have been trampled and stripped from them, there would be riots in the streets, though that may just be the exact reason why they don’t.

      Again, thank you so much for writing and sharing your story. Please keep in touch!

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