Helena Wray highlights the issues with the UK’s family migration policies in light of a new House of Lords report, looking at how the system will now impact a new group – EU citizens without settled or pre-settled status in relationships with British citizens and residents.
What should UK-EU couples expect if they want to live together in the UK, and the EU citizen does not possess pre-settled or settled status? Before Brexit, an EU citizen could live in the UK based on their free movement rights. Brexit brought EU free movement to the UK to an end. But under the Withdrawal Agreement, EU citizens resident in the UK were able to apply for settled status (if resident for five years or more) or pre-settled status (if resident for less than five years), which protected these rights. However, EU citizens without pre-settled or settled status must now apply under current UK domestic immigration laws, which previously only applied to non-EU citizens, to enter or remain as a spouse or partner.
Indications of what they will encounter can be found in a recent report by the House of Lords Justice and Home Affairs Committee, following its inquiry into the UK’s family migration policies. Its conclusions are stark; family migration policies are ‘complex and inconsistent’ and ‘fail both families and society’. The committee did not specifically investigate the consequences of Brexit but it notes the likely impact on UK-EU families, saying that ‘many more families will be separated than was once anticipated’.
Under domestic law, those applying to live in the UK with their partners must meet a range of conditions. The report focuses on the minimum income requirement (MIR), implemented in 2012, which requires the British sponsor to have an income of at least £18,600 pa, or more if children are also sponsored. The policy’s aims were to reduce welfare reliance and improve integration, but the committee said that it ‘did not receive any evidence suggesting that the financial requirement is achieving its aims …. It achieves the opposite’.
There are several problems: the MIR is concerned with the sponsor’s income on application and not the family’s position after entry. A sponsor whose childcare responsibilities make full-time work difficult may claim welfare support that would not be needed if the partner were present.
Instead of promoting integration, it places huge stress on families as sponsors reorganise their lives to meet the MIR and children grow up without a parent, causing social isolation and damage to mental and physical wellbeing. Other longstanding criticisms of the MIR are noted – a substantial proportion of the population cannot meet the threshold, it discriminates against lower earning groups, and the evidential requirements are demanding and inflexible. The committee’s recommendation is that the MIR should be more flexible, should focus on the family’s future income and, contrary to a recent suggestion by the Home Secretary, should not increase further.
More broadly, the committee finds the immigration system to be slow, expensive, and difficult to navigate. Visa fees and other costs (such as the Immigration Health Surcharge) mean an initial outlay of over £3,000 with total costs exceeding £8,000 for a partner to achieve permanent status, more if children are included. The process is complex and demanding, and legal advice is difficult to access and costly. The Home Office service standard is that overseas applications may take nearly six months to decide, and even this may be exceeded.
In addition, , the Home Office communicates poorly with applicants who are charged for phone and email enquiries, while responses are often uninformative. Even MPs cannot obtain a response. Around half the decided appeals against refusal succeed, but they take many months to be determined and implemented. In summary, even applicants who meet the rules face lengthy anxiety, expense, and separation before they can build a life together.
As mentioned, under the EU settlement scheme (EUSS), permanent residence in the UK is available after five years. Under domestic law, there is also a five year ‘probationary period’ – but there are significant differences from the EUSS. Initial leave lasts for 2.5 years, and further expensive applications must be made midway through and at the end of the period. Residence during this time is subject to a ‘no recourse to public funds’ condition.
The five-year period is only a minimum; applicants who cannot be refused for human rights reasons enter a ten-year route to settlement, requiring multiple expensive and difficult applications. The committee found that this prolonged process creates uncertainty, financial strain, and increases the risks of domestic abuse. It recommended that settlement should take no more than five years.
So far, only limited numbers of EU citizens have entered the immigration system as spouses or partners, but they will increase as new relationships are formed in the post-Brexit era between UK citizens and those who are not eligible for the EUSS. This is a substantial new group engaging with the UK’s domestic immigration system, an often-overlooked consequence of Brexit with potential consequences for thousands of families. The committee’s report suggests they will encounter a system that is ‘long and often emotionally draining, and expensive’ and some may find that, while the current laws remain in place, they can never live together in the UK.
By Dr Helena Wray, Associate Professor of Migration Law, University of Exeter and specialist adviser to the Justice and Home Affairs Committee Inquiry into Family Migration.
Helena Wray and Professor Katharine Charsley (University of Bristol) are working on an ESRC-funded project titled ‘UK-EU couples after Brexit: migrantization and the UK family immigration regime’. Read more about the project here.