In a serendipitous encounter in London’s Soho in 2013, I met my wife Laura, a Colombian. After she returned to Colombia to finish her law degree, in 2016 we decided to settle together in the UK. I was working in London and, as Laura was graduating, it made sense to make the UK our home.
What followed was the first of several interactions with the Home Office partner settlement process. My experience has left me convinced, beyond doubt, that it is a process in need of urgent reform.
Pre-2012
Pre-2012, the partner settlement process was relatively straightforward. An applicant could make an application for Leave to Remain for two years, paying the relevant fee. After this two-year period, the applicant had to apply for Indefinite Leave to Remain in the UK (and consequently, if they wished, citizenship).
However in 2012 the Coalition Government made changes to the partner visa process. The changes were made against the backdrop of reducing fraud by a minority of applicants – an important problem to remedy. But, in the process of reform, a key objective of good policy was forgotten – that regulation must balance risk of abuse against restrictions on innocent individuals.
The balance in the 2012 partner visa reform process did not do this. The changes unfortunately made the current process not only a difficult and bureaucratic one, but one that now, in practice, levies a tax on love. It must be changed.
Number of Applications
First, the 2012 partner visa reforms extended the settlement period for partners and spouses (to five years living in the UK together) and, alongside this, increased the number of applications that applicants must make in this period. Over the new settlement period an applicant, who was previously required to make one application for Leave to Remain, must now make two identical applications. Each costs between £1,033 and £1,523 (plus £624 per year for the Healthcare Surcharge).
The first application is made at the beginning of the application period. It is the basis for deciding whether to grant Leave to Remain, and it is extensive. It makes sense to have this application – it requires an English language test, an accommodation survey, income testing and, among other things, proof of relationship.
But the second application, 2.5 years after the first application, is not fit for purpose. The policy rationale for introducing the second application, in the middle of the Leave to Remain period, was to ensure that the facts in the first application remain true. But if this were the case, the second application should not cost the same as the first, nor be as complex. It is ‘checking’ exercise.
In reality, however, the second application is a full repeat of the first. This represents a significant administrative burden on UK citizens families with foreign partners. It also exacerbates what many consider to be excessive cost: it does not cost the Home Office over £1,000 for a case worker to process a typical applicant’s Leave to Remain application.
Many countries with 5-year partner settlement processes do not require two full applications. In the US, for example, you are entitled to a Green Card (their Indefinite Leave to Remain), immediately after marriage. If there must be a second Leave to Remain application in the UK, any charge should be based on covering costs directly related to the application, and the evidence required should be simple documentation to prove the couple remain living together.
Either the burden of the second partner route Leave to Remain application must be reduced, or the second application for Leave to Remain scrapped in its entirety (with a 5-year Leave to Remain granted on first application).
Proof of Income
Second, the 2012 reforms introduced a minimum salary threshold (£18,600 per annum), which applicants must exceed before a partner can live in the UK with them. This was contentious when introduced and earned the UK the moniker as the country with the world’s “least family friendly” immigration policy[1].
In theory, the salary threshold makes sense, as someone’s partner should not burden state finances. In reality, however, this risk is dealt with in the Leave to Remain itself, which allows no recourse to public funds. It is therefore not possible, regardless of income, for a migrant spouse to burden the state. Put simply, the mischief the threshold is trying to address is already dealt with elsewhere.
The introduction of the minimum salary threshold has given rise to a complex income test in partner settlement applications, with red tape which disadvantages the self-employed and penalises the poor. For example why, because you are a key worker on a low salary, should you not be allowed to live in the same country as the partner you love?
It is unjust that a British citizen’s wealth should dictate who (and where) they can love, but this is exactly what the minimum salary threshold demands. It is an excellent example of problematic policy – penalising in effect and unneeded in practice.
As protection of state finances is catered for in granted Leave to Remain itself, it is imperative that the minimum salary threshold for partner visas (and consequent Indefinite Leave to Remain applications) is dropped.
Immigration Rule Clarity
Finally, successive reforms of the Immigration Rules over the past decade have led to a large, poorly drafted, conflicting and unwieldy body of Immigration Rule text. The state of these rules inflicts extra cost on applicants, as first-time applicants often need assistance from immigration lawyers to understand basic requirements, adding to application costs. The immigration rules must be rewritten to be clear, precise and fit for purpose.
One example of ambiguity is in the proof of accommodation requirement, required in the partner Leave to Remain application. To a new applicant, it is not clear on making an application what form or substance an accommodation survey should take (or even if one is needed). Only experts in the area understand this. It can therefore lead to applications being rejected on technical grounds, with no refund of visa processing fees.
Reform of the Immigration Rules should be a priority for the Conservative Government, to ensure the Rules are clear, unambiguous and fit-for-purpose.
Overall
Fortunately, there have been significant improvement to UK visa processes in the past two years, as many visa routes have adopted online, digitised, ‘step-by-step’ applications. In line with this modernisation, and alongside the recommendations above, ‘benefit of the doubt’ must replace ‘presumption of guilt’ as the overarching approach Home Office case workers use to assess partner visa applications, and this approach should be explicit.
Above all, it is important to remember that, in the case of partner visas, the UK is affecting the most intimate parts of a person’s family life. We should therefore exercise empathy and understanding in the process. It is unlike other visa categories, and should be treated as such. We should not be propagating policies that act as a de facto tax on love.
Now, post-Brexit, is the perfect opportunity to reform the unjust elements of our immigration system, to create a system that is more transparent, welcoming and better for all.
[1] https://edmansco.com/uk-least-family-friendly-immigration-policies/
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