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Immigration Rules: Sponsors

Volume 560: debated on Thursday 14 March 2013

Motion made, and Question proposed, That this House do now adjourn.—(Anne Milton.)

Before I call Kerry McCarthy, I must explain that, at 5 o’clock, the hon. Lady will be interrupted so that the same question can be put by the Whip. It is a procedural thing that will no doubt be looked at by the Modernisation Committee.

The issue of immigration is, as ever, highly topical—I cannot remember a time in my nearly eight years in Parliament when it was not—but I want to focus today on one specific aspect of the immigration rules that has put some of my constituents in a difficult position. I know from the responses I have received from other Members that it has affected some of their constituents, too. A number of Members have asked me whether I would be prepared to take interventions during the debate, and I am happy to do so.

The Government have introduced a new minimum income threshold of £18,600 for someone who wishes to sponsor the settlement in the UK of a spouse, partner, fiancé, fiancée or proposed civil partner whose nationality is not that of one of the European economic area countries. A higher threshold applies if the partner—I shall use that term as shorthand from now on—has a child who requires sponsorship, too. It is £22,400 for one child and an additional £2,400 for each further child. There are also rules about adult and elderly dependants, which I do not have time to address here. The British Medical Association, among others, has raised concerns with me about the operation of those rules.

Significant concerns have also been raised with me about the time it takes to process applications that meet all the rules but, again, I do not have time to address them in detail tonight. I will just say that no newly married couple wants to contend with delays when one partner is trying to join the other in this country, and it would be helpful, and humane, if such cases could be speeded up, especially when they comply with all the rules and it is just an administration problem that is holding things up.

Today, however, I want to talk specifically about the income limits. I accept, as do my colleagues on the Labour Front Bench in the Home Affairs team, that family immigration rules should be firm, but they also need to be fair. We need to keep the rules under review, and to adjust them as appropriate to deal with possible abuses and to manage migration at acceptable levels. I do not feel that it is right, however, that the rules should be used to prevent those in genuine, loving relationships from being able to share a life together in this country, when one of them is already a British citizen.

We have always had the “no recourse to public funds” rule, and I have dealt with many cases in which that has proved an obstacle to people wanting a partner to join them here, but I accept the need for such a rule to protect UK taxpayers, provided humanitarian grounds for exception can be applied. We are not, however, talking about cases where the people involved would be dependent on state support. We are talking about cases where the sponsor is in work and is a British citizen, but does not earn enough. By way of illustration, I want to outline the details of three cases. My constituents said they were happy for me to provide the details of their cases, but they did not want their identities revealed. I shall refer to them as Mr X and so on.

The first case relates to Mr X, who for 10 years has lived in Thailand with his Thai wife and their three-year-old child in a long-established relationship. He now needs to return to the UK to look after his elderly parents who are recovering from cancer and are no longer able to travel to Thailand—

Motion lapsed (Standing Order No. 9(3)).

Motion made, and Question proposed, That this House do now adjourn.—(Anne Milton.)

As I was saying, Mr X needs to return to the UK to look after his elderly parents who are recovering from cancer. They used to go on a fairly regular basis to visit him, his wife and child, but they are now too ill and infirm to visit. Mr X has a professional job in Thailand, which he has held down for a long time. It is a decent salary according to local rates, but it is not the equivalent of the £18,600 earnings limit in the UK. It is enough to provide him with the same living standards in Thailand as he would have if he were on that sort of salary in the UK—it is obviously a lot cheaper to live there. Under the new rules, Mr X will have to leave his wife behind while he finds work in the UK, which he is not prepared to do—by which I mean not that he is not prepared to find work, but that he is not prepared to leave his wife behind. They are now considering moving to Spain instead, so that he is reasonably close to his parents and it will be easier for his wife to join him, perhaps becoming a Spanish national, which would then allow them to enter the UK.

I congratulate my hon. Friend on securing this debate. She is describing a situation that we on the all-party group inquiry into family migration have heard several times. Does she agree that there is a further nonsense to the situation she describes? If the family is not able to come in and look after the parents, instead of the family providing care, this will pile costs on for public social care and public health services.

My hon. Friend makes a very good point, as she always does. If I understand the Government’s ideological position on this issue, they want to support families and very much approve of carers taking on responsibility for elderly parents or others within their family network. The rule that we are talking about operates to prevent that from happening.

The second case features Mr Z and Ms Z who came to see me in my constituency surgery a few weeks ago. They were married in the UK in March 2011. She is a British citizen and her husband, who had been living and working in the UK for six years under a valid work permit, is South African. He was in highly paid professional work in the UK, but soon after they married, he was made redundant. Although he could probably have secured another job at a similarly high salary in the UK, they decided to take a chance and move to Cape Town for a couple of years.

After two years in South Africa, however, they have decided that they want to return to the UK, but the rules changed while they were away. He will not be allowed to join his wife in the UK unless she earns more than £18,600—despite the fact that he is a highly skilled computer programmer who could expect to earn perhaps £60,000 a year in the UK. Before they left for Cape Town, my woman constituent was earning £26,000 a year as a pub manager. As she has been out of work for two years in Cape Town, however, there is a gap in her CV, so she is unlikely to be able to walk straight back into a manager’s position, although she aspires to do so in a couple of years’ time. Wages in the pub trade are not particularly high, so it is likely she will start on a salary below £18,600. As I said, they would have a joint income as a family of about £75,000 because her husband could get a well-paid job, but under the new rules it is based on her income, so he would not be able to join her.

My hon. Friend cites a number of cases. I think this whole process is unfair because it is quite clear that families who can afford to maintain themselves without making any demands on public funds are being kept apart. My hon. Friend has cases of people returning to the UK, and just this week I have had two constituents contact me about similar issues. One case was a man returning here from India who has £82,000 in a UK bank. Clearly, he and his wife could properly maintain themselves. However, savings do not count. The man is self-employed, but will not have the long record of employment needed to meet the £26,000-plus requirement, so he is unable to have his wife here with him. The other person—

Perhaps when I have spoken for a little longer, my hon. Friend the Member for Slough (Fiona Mactaggart) will be able to intervene again and make her second point. Indeed, if she intervenes several more times, she may eventually be able to tell the whole story.

I understand that those who earn less than £18,600 can top it up if they have savings, up to a maximum of £62,000. A constituent who was in that situation came to see me the other day. Perhaps the Minister will be able to clarify the position when he responds, but I think that people have to show that they have had the money in their accounts for six months and it has not just been lent to them.

The final case to which I want to refer is that of a constituent whose girlfriend is based in Hong Kong, but is of Philippine origin. He wants her to join him in the United Kingdom, but they cannot marry. She was married to an abusive husband in the Philippines—she fled to Hong Kong to get away from him—but divorce is illegal in the Philippines, which in itself raises interesting questions. What happens if someone from the Philippines comes to this country and wants to marry a British citizen? What will be the impact on that person’s immigration status if that is not allowed?

The couple cannot live in the Philippines together, which is an option that they explored. If my constituent were in a relationship with an undivorced woman in the Philippines, he could face seven years in jail and she could face three to four years.

It turned out, after we had looked into it, that my constituent’s income is just enough for him to qualify under the rules. He came to see me because he had heard about the £62,000 savings limit, and thought that he was expected to have that much money in the bank on top of his income. However, if he had earned just £100 a month less, he would not have been able to bring his partner to the United Kingdom either. They were exploring the possible options. His partner was considering going to Canada, and he thought that perhaps he would be able to join her there.

The situation is ridiculous. My constituent has family responsibilities, and is settled in employment in the UK. The fact that he would have been forced to go to the other side of the world to be with his partner when she could join him here seems nonsensical to me.

Does my hon. Friend agree that the rules go against the basic principle that families should be united rather than divided? These financial conditions are dividing not only husbands and wives but parents, grandparents and others. Are they not unfair and discriminatory, especially to those outside European Union countries?

I think that the Government are trying to avoid circumstances in which spouses or fiancées, for instance, are used as a form of chain migration. I have seen that happen, and I accept that the system is open to abuse and should not be abused in that way. I have come across instances in which people first apply for permission for a spouse to join them in this country, and then extend the application to elderly parents, or perhaps younger brothers and sisters. I accept that we have to manage migration to this country, and that we ought to control such situations. However, none of the cases I have cited involves anything like that.

People are increasingly working and studying abroad. People are going off to university in other countries, meeting their partners there, and then not being able to return to the United Kingdom with their partners until they have established themselves on the career ladder. It is not uncommon now for graduates to start work—if they can start work; they may be on unpaid or paid internships or low-paid jobs for the first couple of years after graduating—but to be unable to bring their partners into this country. I recognise the need to ensure that new migrants to the UK do not increase the burden on the British taxpayer, but many couples survive on less than the average income without being a burden on the taxpayer.

The earning capacity of the spouse from overseas cannot be taken into account. I received a tragic e-mail today from a man who wrote “I cannot get the money. I fell in love with my wife. What can I do? I am really scared.” His wife speaks fluent English, and is a qualified science teacher in Algeria. She would have been able to contribute to science education in my constituency, but she is not going to be able to come here.

That is a valid point and I was about to come on to it. Why is this based only on the sponsor’s salary? As I mentioned, it is highly likely the couple currently living in Cape Town would have a joint income of £75,000 or more, so they would not in any way be a burden on the state.

Basing things solely on the sponsor’s income will inevitably have a differential impact on women who seek to bring their partner here, because, sadly, it is still a fact of life that women are likely to earn less than their partner. Of course, this is even more likely when a child is involved. If a couple wish to return to the UK because the woman is about to give birth—which means she will not be working for the next year or so—they will not be able to do so, even if the man has an offer of a well-paid job here, unless he meets the increasingly stringent rules for getting a work visa, which would mean he would have to work in a specific field where there is a skills shortage.

I want to make a point about flexibility, too. In the current economic climate, people can lose their jobs at the drop of a hat, and these rules do not deal with the realities of life. People can be earning a decent income one day but not the next day, and then be back in work a month or two later. How can the rules be sufficiently flexible to deal with such situations, rather than just penalise people?

What representations has the Minister received about cases that fall into this category? From the research I have done, it is clear there are many such cases. Stories have been reported in the newspapers, too, and many MPs have constituents who are caught up in this situation. What analysis has the Minister done of the sort of people caught under these new rules, and in the light of some of the human stories he has heard—stories of couples who simply want to be able to spend their lives together in the UK—has he given any consideration to revising the rules and allowing more flexibility in decision making?

I am grateful to the hon. Member for Bristol East (Kerry McCarthy) for giving me an opportunity to set out the Government’s thinking. As she was speaking, I was thinking through a number of responses, and I hope I can also respond to the multiple instalment story from the hon. Member for Slough (Fiona Mactaggart), who finally got it all out, I think.

Let me first set out a bit of background to put this matter in context. As part of our general reform of the immigration system across all the routes coming to the United Kingdom, we undertook a major overhaul of the family routes. There were three aims: to prevent burdens on the taxpayer, to promote integration, and to tackle abuse. The hon. Member for Bristol East’s focus has been on the financial requirement, which is the minimum income threshold of £18,600 a year to be met by those wishing to sponsor a partner of non-European economic area nationality to settle in the UK, with higher levels for those who also sponsor dependent non-EEA national children.

The point of the requirement is to prevent burdens from falling on the taxpayer and to promote successful integration. To put the story round the other way and to throw it back at the hon. Lady and the hon. Member for Ealing, Southall (Mr Sharma), people can come here to establish their family lives, but we ask that they should not expect the taxpayer to fund that.

The hon. Lady raised the point about no recourse to public funds, which has always been in place, and suggested that was a sufficient protection for the taxpayer. The problem with that is twofold. First, under the immigration rules only some things the taxpayer funds are classed as public funds. The things that are not considered as public funds are NHS costs, social care, contribution-based jobseeker’s allowance, incapacity benefit, maternity allowance, retirement pension and statutory maternity pay. A range of funds, therefore, are not excluded under the no recourse to public funds measure. If someone comes to the UK under no recourse to public funds, we would still have to provide health care to them, therefore, which may well be a burden on the taxpayer.

Most of the benefits to which the Minister has referred are contribution-based, and therefore are not relevant. On health care, however, I think most of our constituents would be quite happy if there were a requirement looking at some way of paying for health care, because part of the point of this is that there are lots of cases where people will have enough money on any system, but not on this rule.

Let me come back to that. The specific cases that the hon. Lady and the hon. Member for Bristol East raised can I think be dealt with elsewhere in the immigration rules; that comes back to the point about representations.

It seems to me wrong that if someone is earning a modest income, their partner or child cannot access the NHS, but if they are wealthy, they can. Surely that goes completely against what the NHS is meant to be about. The Minister is saying that there is a different rule for people who earn more, meaning that their partners can get NHS treatment.

No, the hon. Lady misunderstands me, which I am sure is my fault for not explaining the situation. The point is that if someone comes here and we say they have no recourse to public funds, they do have access to the NHS. I think the hon. Lady was arguing that because someone on a modest income who brings their family member here could not access public funds, that would not place a burden on the taxpayer. My point was that if, for example, that person needed to access the NHS, they could, and of course that burden would fall on the taxpayer, even though the income-earner’s contribution to the Exchequer may be very modest.

The other, wider, issue concerns the way our welfare system works. The presence of the partner may of course increase the benefits that the British national is entitled to. Although the migrant might not be entitled to housing benefit, for example, their presence may well increase the amount that the UK citizen is able to claim. That may give rise to a genuine issue about how our welfare system works—that is another debate—but given how it works, it is not quite as simple as saying that because there is no recourse to public funds there is no burden on the taxpayer from their presence.

I want to say something about a change relating to integration, albeit briefly as it does not fall within the category of finance. We think English language skills are very important, which is why, from October, we are increasing the level of English language skills we expect. That is partly to give those who come here the best possible chance of integrating—participating in the workplace and being part of the community.

The Minister is making a really important point. People are welcome, providing they can contribute to the society they are joining. That is surely good for them, too. Does the Minister agree that the central point regarding language and income is that they feel comfortable, involved and included?

I do, and that goes back to the central point of the debate.

I was about to give a little background to how we arrived at the particular sums of money involved, because that is helpful—

Will the Minister take this opportunity to commit to making sure that in every country, applicants who are trying to come here to join a spouse can actually get the qualifications he is going to require of them?

My understanding is that people are able to do that. I can tell from the way the hon. Lady is looking at me that there is a point behind her question, so if she will do me the courtesy of dropping me a line, I will examine the argument she is making and get back to her, rather than diverting the debate away from its central point.

At the risk of diverting the debate for just a fraction longer, I worry a bit about this language test. I come from a third-generation immigrant family, and my grandfather to the end of his life spoke English haltingly and with a thick foreign accent. What mattered was that he was able to undertake a productive trade, and that his children and grandchildren were not cosseted by being taught in the language of the country they had left, but were properly educated in the language of the country they had joined. To have too stringent a language test is to look at the problem the wrong way round.

I was listening very carefully to what my hon. Friend said, and I will reflect on it. I thank him for making that point.

Let me say a little more about the financial changes—

I am glad that my hon. Friend is moving on to that point, because residents in my constituency are surprised that the limit of £18,000 is so low, given that we hear concerns about the benefits cap of £26,000. I am delighted that he is going to explain why the limit is £18,000—of course, it is more for people with children.

The previous requirement, which I think has been alluded to, was that applicants had to be “adequately maintained”. The courts generally interpreted that to mean income equivalent to the level of income support for a British family of that size, which was about £5,500 a year for a couple at that time. Our view was that that level of income was not an adequate basis for sustainable family migration and did not provide adequate assurance that UK sponsors and their migrant partners could support themselves and their children over the long term.

The previous regime also required quite a complex assessment, both for applicants and caseworkers, of current and prospective employment income and other financial means. It made decision making difficult, as was highlighted by the independent chief inspector’s report of 24 January on the processing of applications under the old rules for spouses and partners. Again, that was partly why we wanted a financial requirement that was clear and transparent; applicants would know where they stood, and we could make clear and timely decisions.

The minimum income threshold is £18,600 a year, with a higher amount with those sponsoring dependent children—it is £22,400 for those sponsoring one child and an extra £2,400 for each further child. We based that on the expert advice of the independent Migration Advisory Committee. It gave us a range of figures and that was at the low end. Its figures went up to about £25,000, a level at which someone would be making a net contribution to the Exchequer. The £18,600 level we settled on is broadly the income at which a couple, once settled here, cannot access income-related benefits. It is not an exact match, but it was as close as we can get. Our approach broadly says, “If they are here earning that amount of money, they are going to be able to stand on their own two feet and not expect the taxpayer to support them.”

I understand the logic the Minister is outlining, but when benefits are assessed for a household they are assessed on a household basis. So this approach does not appear to address the point that has been made about ignoring the income of the incoming spouse.

The hon. Lady makes a very good point, which I am coming on to address. In most cases—this comes back to the point about representations—including one of the cases the hon. Member for Bristol East raised and the one mentioned by the hon. Member for Slough (Fiona Mactaggart), there is often an alternative way, through the immigration rules, of someone getting to the United Kingdom. So the reason we do not take into account—

Let me just develop the point, because either I will answer it satisfactorily or I will not and the hon. Lady will then be able pick up the point she thinks I have not answered adequately, rather than getting in first. I will make two points. First, we do not take into account the previous income of the migrant partner when they apply for entry clearance mainly because what someone happened to be earning elsewhere is no guarantee of their finding work here. However, in the case she highlighted of the female British citizen with a South African husband and in the case that the hon. Member for Slough mentioned of the skilled science teacher, although the partner may not be able to get entry clearance to come to the United Kingdom as a spouse, they would of course be able to apply under our tier 2 skilled working visa to come to the United Kingdom. They could then get entry clearance on that basis and once here in work, earning an income, they would be able to switch into the family route. They could then show that they could earn that level of income and that would then be taken into account. So people who would be able to come here to work in a skilled job could come here under an alternative route and once they have established the fact of earning that level of income, they would be able to change their status under the spouse route, with the appropriate route to settlement. So certainly the South African husband could follow that route and it would work for him.

My understanding is that he would be able to do that only if his job could not be filled by a UK person. He is a computer programmer and, obviously, there are a lot of those in this country already, so he would not meet the criteria: no employer would say that the skills they required could be met only by him and not by anyone else. He has worked in the UK for six years under a work permit and it was unfortunate that the couple left the UK for a short time and the rules changed while they were out of the country. Had they not done so, they would have been able to go down the route that the Minister suggested.

Under the tier 2 rule, it has to be a skilled job and they have to undergo a resident labour market test. So if he has a particular employer in mind, the rules may be a little more inflexible in the sense that he may not be able to say a specific employer, but if he has skills to offer, there are many occupations in which there is a shortage of people. If it is an occupation on the shortage occupation list, the employer is not required to undergo a resident labour market test. There are therefore opportunities in certain cases for someone to come here.

The hon. Member for Slough highlighted the issue of savings. Despite the fact that I managed to throw together some maths A-levels, that was a long time ago so I will not try to do the maths in my head. Savings can be used to make up the difference. We look at the amount of savings above £16,000, which is the threshold that is generally disregarded for income-related benefits. If someone holds savings for the period that they are hoping to come to the United Kingdom, which would be 30 months, the savings count as long as the applicants have them under their control for at least six months.

I believe that the answer is yes. If inspiration does not strike me before the end of the debate to confirm that, I will write to her.

In the immigration rules laid today, we have made some changes to the evidential requirements. For example, we had cases in which people were in receipt of tax-free stipends from universities. The net amount was below £18,600 and the rules were previously unclear about whether people could gross it up. I had a couple of cases raised with me and I thought it self-evident that people should be able to gross it up. So we have made it clear that that is indeed the case.

Does my hon. Friend agree that plenty of companies in this country regularly secure permits to bring talented people to fulfil specific roles? So, it happens now and we are proud to welcome talent into our country to fill those roles.

My hon. Friend is right. If people have married or are with a partner, they are looking at a particular route. It is worth saying, and her intervention highlights this, that there are alternative routes for people under the immigration rules for some of these difficult cases.

May I go back to the qualification period, for both savings and income? Why did the Government choose six months?

It was to ensure that people could not abuse the system by holding the money for only a day or two, making the application, succeeding and then giving the money back. It is to make sure that the money is genuinely under someone’s control and available to them rather than their borrowing money that belongs to someone else for a short period. We felt that six months met that requirement without being overly burdensome and putting unreasonable requirements on individuals.

Perhaps I will follow up the point made by the hon. Member for Slough if she speaks to me about the specific case. Inspiration has told me that the savings do not count in that way with self-employed people. If she has a specific case, which it looks like she has, perhaps she will draw that to my attention and I will look at it and see whether I think the rules are sufficient to deal with it.

I beg to move, That the House sit in private.

Question put forthwith (Standing Order No. 163).

The House proceeded to a Division.

My point of order was about the length of time the Division is taking given the small number of Members present. Are people playing games?

Mr Flynn, I cannot believe that that could possibly happen. If somebody is playing games, I am not sure who it is. You made your point of order just as I was rising to ask the Serjeant at Arms to investigate the delay in both Lobbies.

I am on the verge of sending somebody to see where the Serjeant at Arms has gone. Has this got anything to do with Comic Relief by any chance? It is that time of year.

On a point of order, Mr Deputy Speaker. There is some confusion over whether it is technically possible under “Erskine May” to call for a Division on the Adjournment. Of course, you are the gatekeeper and the guardian of good order, but my understanding is that there have been occasions on which the House has divided on the Adjournment. I believe that after an Adjournment debate on Norway in 1940, there was a Division on the Adjournment. Any guidance that you can give me would be gratefully received.

I thank the hon. Gentleman for his point of order. I know that the House is waiting with eager anticipation for the answer. The answer is that it is gone 5.30, so the Question would not be put in any event. Therefore, the Question cannot be put.

Further to that point of order, Mr Deputy Speaker. I am incredibly grateful for that clarification. I had a brief opportunity in the few moments that I spent in the Aye Lobby to look at “Erskine May”, but I could not find that reference. Is it possible for it to be circulated, for the benefit of Members such as me who are not as knowledgeable as you, Mr Deputy Speaker, so that we do not waste any more of the House’s time?

Some people may interpret what is going on now as being a waste of time, but certainly not the Chair. I am absolutely certain that clarifications on the rules of procedure will be made. The Question could have been put before the moment of interruption, for instance at 5.29, which, as the hon. Gentleman has pointed out, has happened in the past. I think that the last time it happened was in the 1970s. On this occasion, we have clearly gone past the moment of interruption and, therefore, the Question will not be posed.

On a point of order, Mr Deputy Speaker. If the Question that this House do now adjourn cannot be put, how can we decide whether the House is to adjourn or not? Surely if we have missed the opportunity for putting that Question, we need to carry on sitting.

Thank you, Mr Rees-Mogg, for that point of order. We are past the moment of interruption. Had the Minister carried on speaking until half past 5, I would have just stood up and not put the Question.

House adjourned without Question put (Standing Order No. 9(7)).