Skype Families and the Impact on All Involved – Will the MM Case Appeal to the Supreme Court Offer any Solace?

There is a new term being used to describe families separated due to the income threshold required for a British national to bring his or her non-EEA resident family into the country – Skype Families. Although the term may sound trendy and modern, for the parents and children living with the reality of residing in a separate county from their loved ones, every day is full of sadness.

The Cause of ‘Skype Families.'

In 2012, Appendix FM of the Immigration Rules introduced a financial threshold that needed to be met before a spouse or dependent child of a UK national could enter and settle in the UK. To bring their spouse/civil partner and children to the UK, the sponsoring residing spouse must show the Home Office that they have an income exceeding £18,600 per year. This figure rises to £24,600 for also sponsoring a child, and an additional £2,400 is needed for every subsequent child

Just to put that figure into perspective; at the moment, less than half the British population earn this amount per annum. An individual earning the minimum wage, who works 37.5 hours per week, earns approximately £12,675 per year.

The Government’s income threshold was endorsed by the Court of Appeal in MM v Secretary of State for the Home Department [2014] EWCA Civ 985. This decision is to be appealed to the Supreme Court; however, a hearing date has yet to be announced.

The Children’s Commissioner Report on the Impact of the Income Threshold

In mid-September 2015, the Children's Commissioner released a report detailing the impact the Governments Immigration rules have had on families, especially children since they were introduced in 2012.

Key findings in the report included:

• Since 2012, it is estimated that 15,000 children have been separated from one of their parents because their British parent could not meet the financial requirements of the Immigration Rules implemented in 2012.
• Children suffer distress and anxiety because of separation from a parent. Many believe this has a profound effect on their well-being and development. Behaviour problems can include eating and sleeping problems; slow or poor language development, and can result in anger and violence being displayed toward peers and family.
• There is very little evidence that the interests of any children concerned are considered with the Home Office reviews an application for a family visa.
• Despite the aim of the Government to reduce migrants dependence on public funds, by refusing to allow a co-parent to join the sponsoring parent in the UK, the sponsoring parent is often forced to rely on welfare as a source of income, in the same vein as a single-parent.

The UK’s Obligations to Protecting the Rights of the Child

The Government of the United Kingdom (both central and local) has a legal obligation to treat the welfare of the child as a primary consideration when implementing Rules and policies and when making individual decisions. The obligation originates in the Convention on the Rights of the Child. Article 3, which contains the best interests principle, is the overriding obligation of the Convention. Article 3 has been incorporated into UK immigration law under Section 55 of the Borders, Citizenship and Immigration Act 2009 and also forms part of the Governments obligations under Article 8, the right to respect for private and family life of the European Convention on Human Rights. The Section 55 duty applies to all children in the UK irrespective of Immigration status and should be applied to children who are abroad but who are impacted by an Immigration decision to refuse them or their parent leave to enter the UK.

Exceptional and Compassionate Circumstances

To comply with Article 8 and the duty under Section 55, Immigration officials are required to take into account exceptional and compassionate circumstances if an individual fails to meet the requirements under Appendix FM. However, examples of exceptionality are very limited and narrow as they are

• premised on the basis that it is not in the child’s best interest to live with both parents if one parent is abroad
• entry clearance officers are actively encouraged to explore ‘other means of meeting the child’s best interests – than by the applicant’s presence in the UK’
• the parent-child bond is reduced to ‘effective and material contribution.'

As you can imagine, under this sort of criteria, the actual number of cases where the best interests of the child were even considered are few and far between. In 2013, John Vine, the former Independent Chief Inspector of Borders and Immigration, reported that out of 60 cases involving children, in only one had a decision-maker considered their best interests.

Moving Forward

The Children's Commissioner Report states that the UK's family visa policy is one of the most un-family friendly policies in the developed world. The report made some recommendations for lowering the current threshold, including:

• taking the potential income of the partner being sponsored into consideration
• taking into consideration the regional differences in income requirements across the UK
• reducing the current £16,000 threshold before savings can be counted
• taking into account party support (such as the offer of housing)
• reducing the income threshold to a level equal to the minimum wage
• giving consideration to ways to take account of the relative level of wages earned outside the UK and allow the family a reasonable period in which to live in the UK and find work without having to meet the financial requirements provided there is no recourse to public funds by the partner
• granting a visitor visa to the absent parent

Whether the Government takes these recommendations on board remains to be seen. The decision of the Supreme Court in MM v Secretary of State for the Home Department is highly anticipated, but until we have further developments, many families will continue to fall under this new and disturbing label of ‘Skype families’.

At OTS Solicitors, we are experts in managing applications and appeals for family law visas. If you wish to talk to us about your situation, please phone our London office on 0207 936 9960. We have an excellent record of successfully gaining family visas for individuals so they can be reunited with their loved one.