In October 2010, five months after the coalition government took power, and Theresa May became home secretary, a requirement was brought in for spouses seeking to join their (British or non-EU) partners in Britain to pass an English test as a precondition of a visa (unless they were from an English-speaking country, had a degree taught in English, were over 65, had a mental or physical condition that prevented them from taking the test, or there were ‘exceptional compassionate circumstances’). The English test itself wasn’t new: it had previously been taken when the spouse or partner sought permanent residence after a two-year probationary period designed to test the genuineness of the relationship. This gave migrants time to learn English – but it didn’t cut the numbers coming in. And May’s driving purpose was to cut numbers, after David Cameron had recklessly pledged to bring net annual migration down to the ‘tens of thousands’ from nearly a quarter of a million. Family migration was not the only target – May also capped work permits and student numbers – but the language test was particularly brutal. Getting the necessary tuition was impossible for those living in rural areas, or who were unable to afford the classes; and some spouses were illiterate.
In July 2012, the family migration rules were toughened again. Now the sponsor based in Britain would need to have a minimum gross income of £18,600 in order to bring in a partner (£22,400 for a partner and a child, with an extra £2,400 for each additional child). The money had to be earned by the sponsor and no account would be taken of the earning power of the incoming partner, or of any support from third parties. Alternatively, the British partner had to have savings of at least £16,000 plus two and a half times the shortfall in their earnings. The level set for the minimum income was far short of the £40,000 that Baroness Warsi, then chair of the Conservative Party, claims that May favoured, but considerably above the minimum wage of £13,400, and above average earnings for three-quarters of the occupations listed in the Office for National Statistics’ Statistical Bulletin: Average Survey of Hours and Earnings for 2015, particularly for those outside London.
The new rule was presented as preventing ‘abuse’ of public funds such as welfare benefits, although since the 1970s British-based sponsors have had to produce meticulous household accounts to prove that family members will be housed and supported ‘without recourse to public funds’ – and for the last fifteen years, no one ‘subject to immigration control’ has been eligible for welfare benefits anyway. It was estimated that the minimum income rule would lead to a reduction in family visas of around 45 per cent. At the same time, the probationary period for spouses and partners was raised from two to five years: if the relationship ended during that period the non-British partner had to leave the UK, unless there was evidence of domestic violence.
The admission of non-EU family members has always been fraught. In the 1970s, the queue for an interview at British High Commissions in South Asia for women seeking visas to join their husbands in the UK was two years long. In 1979 it was revealed by the Guardian that women from the Indian subcontinent entering the UK as fiancées of men settled here were being forced to submit to virginity testing, intended to prevent the already married from ‘jumping the queue’ (you needed a visa if you were married but not if you were engaged and the wedding was to take place within three months). Well into the 1980s, women’s skulls, teeth and pubic hair were inspected by male doctors at British High Commissions in Bangladesh, ostensibly to check their age.
Children coming from Bangladesh and Pakistan to join their parents were routinely subjected to ‘bone age’ X-rays on the basis that they might be over-age and thus ineligible, until the tests were condemned as medically unsafe as well as unreliable in the Yellowlees Report of 1981. Another favourite way of keeping family migration low was the ‘discrepancy-counting’ test: ask extremely detailed questions about the layout of the family home in Bangladesh or wherever, compare the responses with those of the British-based family members and refuse entry on the grounds that any discrepancies prove the children are ‘not related as claimed’. The advent of DNA testing in the late 1980s enabled marooned family members to prove the relationship beyond doubt, and conclusively proved the unreliability of discrepancy-counting – but by then many of the children involved were too old to qualify. Discrepancy-counting continued to be used to assess whether a couple’s knowledge of each other was accurate enough to prove their relationship was genuine.
In the 1980s, spouses were subject to the ‘primary purpose’ test, which demanded that couples, in particular from the Indian subcontinent, prove not merely that they intended to live together as husband and wife, but that the primary purpose of the marriage was not settlement for the foreign spouse. At one time, more than half of all applications to join spouses in the UK were refused under this rule. If they appealed, the British-based partner, usually the wife, was forced to answer humiliating questions designed to ascertain whether her husband was using her as a passport – questions asked with particular rudeness when the wife wasn’t young or attractive.
The Blair government repealed the primary purpose rule and extended family rights to same-sex partners, but it also brought in new restrictions – spouses and partners under 18 could not enter (it tried to raise the minimum age to 21, but the Supreme Court ruled this an unlawful interference with family life). New Labour also brought in a measure requiring those born outside the EU to obtain Home Office permission if they wanted to marry in the UK other than in the Church of England (which was thought to perform its own checks against sham marriages) but it too was struck down by the Supreme Court. There were also legal challenges to the coalition’s English-language requirement and the minimum income requirement, but the Supreme Court did not find against them.
The 2012 rule changes particularly affected adult dependent relatives. A parent or grandparent seeking to join a child or grandchild based in the UK is not allowed to be ‘in a subsisting relationship with a partner’ who is not the child’s other parent or grandparent. It is not enough for family members in Britain to be able and willing to support their adult relatives: to qualify, applicants ‘must as a result of age, illness or disability require long-term personal care to perform everyday tasks’ and ‘must be unable, even with the practical and financial help of the sponsor, to obtain the required level of care in the country where they are living, either because it is not available and there is no person in that country who can reasonably provide it; or it is not affordable’. The message to children with parents abroad is clear: go and look after them there, you can’t bring them here.
Irene Clennell, who was deported in February despite having been married to a British man for 27 years and having two British children and a British grandchild, lost her indefinite leave to remain as a result of spending too long in Singapore looking after her elderly parents. The rules allow permanent residents to spend up to two years out of the UK – but after that their right of residence is lost, although border officials may allow re-entry to someone who ‘has, for example, spent most of his life here’. Clennell was not considered to qualify for this, and was granted only a visitor visa, which meant under the rules she had to leave the country after six months. Then her husband had a heart bypass and she overstayed her visitor leave.
There is a right of appeal against removal as an overstayer, on asylum or human rights grounds. But another change in the law means that it can only be exercised from abroad, except when the person is at imminent risk of serious harm in the destination country. The legislation was introduced in 2014, applying then only to foreign criminals who were being deported, but extended in 2016 to anyone facing removal from the UK whatever the reason.
These punitive rules did not achieve the hoped-for result: by the time of the 2015 general election net migration was over 330,000. Politicians and the media blamed the Poles, Romanians and Bulgarians who had used the EU right of free movement supposedly to get British benefits and use the NHS, taking British jobs and cutting British wages. This agitation over EU migration led to the Brexit vote. As home secretary, May did her bit: enforced removals of EU nationals increased nearly sixfold, from under 800 in 2010 to 4684 in 2016. Rough sleepers in particular were targeted. According to a report by Corporate Watch, joint patrols by homelessness charities, local authority and border officials seek out rough sleepers, around half of whom are EU nationals casually employed in sectors like construction and hospitality. They are accused of ‘abusing’ their free movement rights, detained and removed. Last year 141 such patrols were carried out in London boroughs (not counting Westminster, which has the highest number of rough sleepers in the capital, but claimed, in response to a freedom of information request, not to hold the relevant information). Substantial damages have been awarded to some of the EU nationals detained under this policy, but since few of them are in a position to take legal action, the practice continues; for the Home Office, it’s a small price to pay. Since February, border officials have been allowed to refuse entry to anyone ‘misusing’ the right to reside by, for example, trying to return within a year. This is probably illegal, but by the time the European Commission takes the UK to the EU’s Court of Justice, it will be too late.
EU law recognises that for free movement to work, family members have to be included, and so not only spouses and partners and children, but parents, grandparents and grandchildren have the right to accompany or join an EU national here simply on proof of the relationship. Once Britain leaves the EU, EU nationals arriving in the UK will face the same restrictions on family life as everyone else. The Home Office seems to be ignoring the rights of EU citizens already: since the referendum, there have been several stories about stay-at-home partners being told to leave after decades in this country. Monique Hawkins, a Dutch national who has spent 24 years here, is married to a British citizen and has British children, was told to ‘prepare to leave the UK’ when her application for permanent residence was turned down in December because she didn’t enclose her passport, but a certified copy.
Others have been told to leave because they don’t possess private health insurance (which the European Commission says is an illegal requirement because they are eligible for NHS treatment). After the latest threatened exclusion, of a German PhD student, a Home Office official gave a ‘categorical assurance’ to a journalist that ‘EU citizens will not be removed or refused entry because they do not have comprehensive sickness insurance.’ The Home Office has admitted that the notices to leave the UK were served in error. But with May determined to play poker with the three million current EU residents and ensuring that the Commons reversed the Lords’ amendment to the Brexit bill that guaranteed their residence rights, such cases may well indicate the way EU citizens who fail to qualify for permanent residence are likely to be treated two years from now. For May, immigration – whether from the EU or beyond – has never been a right. Coming to and staying in the UK has always been a privilege, to be earned or bought – and to be forfeited for the slightest infraction.