Government threatened with new court action for 'failing to act' on harsh impact of immigration rules on children

Changes forced by Supreme Court ruling on ‘Skype kids’ separated from a parent condemned as ‘tinkering at the margins’

Rob Merrick
Deputy Political Editor
Sunday 30 July 2017 15:16
The Supreme Court said the income rules failed to properly consider the interests of children
The Supreme Court said the income rules failed to properly consider the interests of children

Campaigners have threatened a fresh court challenge after accusing the Government of failing to act on the Supreme Court’s ruling that harsh immigration rules unfairly punish children.

Support groups said new proposals would fail to end the “heartbreaking long-term trauma” of youngsters when one of their parents has been barred from the country.

Thousands of Britons have been prevented from bringing their non-European husbands and wives to the UK, under a strict minimum income requirement.

Critics have highlighted the plight of up to 15,000 children who have grown up as “Skype kids”, as the only way to keep in contact with one of their parents.

Ministers were ordered to make changes after the Supreme Court ruled that the Home Office was failing to fully carry out its legal duties in respect to the children involved.

But the amendments have now been condemned as “mere tinkering at the margins” by the Joint Council for the Welfare of Immigrants (JCWI), which helped bring the legal case.

It also attacked the Home Office for breaking with convention by failing to release guidance to set out how the changes will be implemented on the ground.

The group BritCits, which supports families separated by borders, warned the Home Office would continue to allow visas to be refused unless the impact on a child was “unduly harsh”.

Both groups told The Independent they are ready to go back to court if they decide the Home Office is still failing to comply with the ruling that the policy must be altered.

The Migration Observatory at the University of Oxford said the policy remained one “designed to discriminate based on income”.

Privately, a Government source told The Independent that the changes were merely “presentational” and designed to leave the policy itself intact.

The Home Office also revealed that the four-month delay in producing new rules has triggered a backlog of 5,000 applications from foreign spouses.

Meanwhile, the Conservative manifesto vowed to hike the income demanded of the partner currently in the UK – currently £18,600 – which would exclude many more spouses.

Chai Patel, the JCWI’s legal director, said: “Our research, submitted to the Supreme Court, shows the heartbreaking long-term trauma inflicted on children in this position.

“The new rules issued are not clearly written and the Government is still sitting on the guidance that will tell us how they will actually be implemented.

“JCWI will be closely monitoring the implementation of these new rules in August and stands ready to challenge any further illegality.”

Sonel Mehta, a spokeswoman for BritCits, said the Home Office “retains this ‘unduly harsh’ excuse which means families will still be at the mercy of caseworkers – who already are under pressure to refuse, refuse, refuse.

“Lawyers are currently assessing whether the changes do go far enough. If their view matches ours, we may see this issue back at the Supreme Court.

“In the meantime, couples will continue to live in different countries, children will be raised by single parents and Brits will live in exile – often leaving elderly Brits back home to rely on social care.”

Rob McNeil, of The Migration Observatory, said: “This is still a policy designed to discriminate based on income and it will always be discriminatory. The changes with regard to children are discretionary.

“Women are more likely to be affected than men, people in the North of England are more likely to be affected than those in London and ethnic minorities more so than white people.”

The threshold, introduced by Theresa May as Home Secretary in 2012, stands at £18,600 for a partner from outside the European Economic Area (EEA), £22,400 if they have one child and an additional £2,400 for each further child.

In February, the Supreme Court “accepted in principle” the restrictions, but warned they cause “hardship” and ordered changes with respect to children.

In response, the Home Office has said it will take into account “credible prospective earnings” of the applicant, as well as any guarantee of financial support “from a third party” – but only “in exceptional circumstances”.

Decisions will also “have regard, as a primary consideration, to the best interests of any child affected by the decision”, the document says.

However, the Home Office acknowledged it already had that duty. The difference was that it would now be set out explicitly in guidance to be “published in due course”.

The new proposals were buried in a blizzard of Government announcements as MPs left Westminster for their summer break – dubbed “take out the trash day” – but have now been analysed. They come into effect on August 10.

A Home Office spokesperson said: “In February, the Supreme Court endorsed our approach in setting an income threshold for family migration that prevents burdens being placed on taxpayers and ensures migrant families can integrate into our communities. This is central to building an immigration system that works in the national interest.

“The changes in immigration rules do not affect this underlying policy, but instead address the court’s findings in respect of exceptional circumstances and of our existing statutory duty to consider a child’s best interests,” he added.

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