Exiled and broken: new amendments to UK's discriminatory immigration rules make "homemaking" impossible for UK women.

• Published date: 01 January 2016
• Author: Kennedy, Paloma Allegra
• Date: 01 January 2016

I. INTRODUCTION

On September 9, 2013, the Home Affairs Section of the United Kingdom ("UK") Parliament issued a Standard Note detailing new amendments ("Amendments") to the Immigration Rules. (1) The Amendments affect British citizens (2) or UK settled persons (3) ("UK citizens") who wish to sponsor a spouse, partner, or fiance(e) who is not a citizen of a European Economic Area state ("non-EEA partner"). (4) Sponsorship is a necessary evil for those who wish to obtain a visa and settle in the UK permanently. (5) However, qualifying non-EEA partners for sponsorship has become a hurdle under the new Amendments: UK citizens must now meet a minimum income requirement ("MIR") in order to sponsor their non-EEA partner, which increases if he or she has dependent children. (6) Many UK citizens who have been unable to meet the MIR are forced to remain abroad with their families or return to the UK and live apart. (7)

Unable to meet the MIR and refusing to admit defeat, (8) UK citizens Abdul Majid and Shabana Javed, and a refugee referred to in the case law as "MM," applied to the High Court of Justice (9) seeking judicial review. (10) The three claimants alleged the MIR: violates the UK's Human Rights Act, (11) "do[es] not apply to parents who [are] also seeking to enter as spouses," (12) and unwittingly discriminates against women. (13) Presiding Justice Blake found substantial merit in the contention that the MIR is not compatible with human rights law and also an unjustified and irrational restriction on UK citizen rights. (14) Finding the MIR to be "more than ... necessary to promote the legitimate" legislative aims, Justice Blake held in favor of the claimants. (15) The Secretary of State for the Home Department appealed. (16) Among the myriad of issues, it boiled down to whether the MIR disproportionately interfered with UK citizens' rights under Article 8 of the European Convention of Human Rights. (17) To the claimants' dismay, the Court of Appeal overturned the lower court's holding and found the MIR to be a lawful means to an end. (18)

The Amendments prevent UK citizens from uniting with loved ones in their home country, and this is an issue of great consequence for these individuals and their families. However, the most serious consequence is the Amendments' failure to take into account persistent gender-specific occupational barriers. This Note will examine the MIR and the sources of income couples may rely on to meet this standard in Part II. It will further show competing perspectives regarding the MIRs effectiveness. Part III will present the claimants' case and expound on their theories that the MIR is unconstitutional. Part IV will discuss the historical discourse surrounding work and labor through Marxist and Marxist-feminist critiques and analyze the Amendments utilizing the theories of waged housework and social factory. (19) This Note will then illuminate, in Part V, how the Amendments: ensure female UK citizens are less able than male UK citizens to sponsor their non-EEA partners, strip UK women of their free will to stay at home, and marginalize, if not dismiss, the work women do as stay-at-home mothers and housewives. Part VI suggests novel ways to address the Amendments discriminatory effects. Last, Part VII will conclude with a concise summation reiterating that the Amendments have failed to reduce unwieldy immigration, unwittingly limited the pool of skilled workers, and underestimated the positive effects blended families have on the UK economy.

II. THE NEW MINIMUM INCOME REQUIREMENT: A CLOSER EXAMINATION

On July 9, 2012, Immigration Rules became effective (20) requiring citizens who wish to sponsor their non-EEA partner to demonstrate a genuine and subsisting relationship, (21) meet a minimum income requirement ("MIR") of 18,600 £ per year, (22) and endure a five-year probationary process. (23) The MIR increases by 3,800 [pounds sterling] for one dependent child and 2,400 £ for each additional child thereafter. (24) A UK citizen may only rely on his or her individual earnings in the UK (25) to meet the MIR. (26) Third party income, migrant partner's income abroad, or a migrant partner's offer of employment in the UK may not be used to compensate for any MIR deficiencies. (27) UK citizens may only rely upon their migrant partner's income if he or she is already in the UK with permission to work. (28) However, cash savings above 16,000 £ held by either the UK citizen or their non-EEA partner may be used alone or in combination with salaried or non-salaried income in order to meet the MIR. (29)

These drastic Amendments are the result of the UK's new objective (30) to reduce "net migration levels from hundreds of thousands to tens of thousands." (31) This is intended to ensure UK citizens have sufficient financial resources to support themselves and their migrant families without burdening the general taxpayer. (32) The UK Government has qualified the increased MIR by claiming the previous amount was insufficient to meet these new immigration objectives and failed to promote the migrant family's ability to integrate effectively. (33)

Unsurprisingly, the new Amendments have not been implemented without criticism. (34) One concern is that the MIR leads to unforeseen costs. (35) The Home Office's Impact Assessment estimated the MIR would save 660 million £ over a ten-year period; however, Middlesex University argues the loss of "wider benefits of migrant partners' economic activity" could cost the UK 850 million £. (36) While the new MIR seems steep, the UK's requirements seem to straddle the two extremes--a high MIR or none at all. Norway has one of the highest MIR requirements: In 2013, Norwegian citizens needed an annual income of 246.136 kr, (37) which is the equivalent (38) to roughly 23,188 [pounds sterling]. (39) On the other side of the spectrum, Canada has no MIR. (40) Canadian citizens who wish to sponsor their partner

Weekly Earnings by Workplace, UK, April, 1997-2014, OFFICE FOR NATIONAL STATISTICS, http://www.neighbourhood.statistics.gov.uk/HTMLDocs/dvc138/index.htmI (last visited Oct. 16, 2015) (click and drag the white circle at the bottom of the timeline to arrive at the year "2014;" then click on the magnifying glass with the plus symbol in the middle; then toggle back and forth between the "female" and "male" buttons at the top). The UK Government contends a single national threshold, which does not take regional differences into consideration, provides clarity and simplicity for both Home Office staff and applicants. Gower, supra note 20, at 11. sign a contract with the Minister of Citizenship, called an undertaking, promising to provide support for their partner and dependent children. (41)

III. UK CITIZENS BATTLE FOR FAMILY: REGINA (MM (LEBANON) V. SECRETARY OF STATE FOR THE HOME DEPARTMENT (42)

In 2013, claimants (43) sought judicial review claiming the Amendments interfered with their lives and violated their human rights. (44) MM, a postgraduate student at the University of Wolverhamptom, claimed the Amendments prevented him from relying on his wife's income and from receiving a deed of covenant from his brother. (45) Further, his father had promised to match the deed, which would have allowed him to meet the MIR requirements and successfully sponsor his wife. (46) His nephew, who was added as an interested party in this matter, claimed the inability to achieve family unity violated the Human Rights Act. (47) The second claimant, Mr. Majid, a UK citizen of Pakistani origins, had been taking care of four of his five children in the UK and had been unable to find work. (48) He claimed the new Rules do not apply to UK citizens who have been settled for seven years and argued that having his wife in the UK would allow him to focus on finding employment while she takes care of the children. (49) The third claimant, Ms. Javed, a UK citizen of Pakistani origin, claimed the regime of financial sponsorship "unjustifiably" discriminates against women due to their significantly lower rates of pay and employment as compared to men. (50) She was unemployed and therefore unable to sponsor her Pakistani husband; regardless, she claimed she would be unable to meet the MIR even if employed since vacancies at her local "job centre" paid well below 18,000 £ per annum. (51)

Upon a lengthy review of precedent in the area of immigration, Justice Blake found in favor of the claimants stating the Amendments in combination with "prevailing circumstances" disproportionately interfere with the rights of UK citizens and their non-EEA partners to enjoy the fundamental importance of respect for family life. (52) The "prevailing circumstances" included an in-depth analysis of UK citizen rights, legitimate goals of the Immigration Rules, child welfare, and discrimination. (53) Justice Blake accepted that a UK citizen's inability to reside in the country of his or her nationality due solely to the exclusion of his or her partner is an interference with the right of residence. (54) In contrast, Justice Blake did not find the claimants demonstrated the Amendments to be unlawfully discriminatory. (55) Similarly, he did not find it persuasive that the Amendments unlawfully override accommodation to serve the best interest of children. (56) His ultimate decision to find in favor of the claimants rested on the notion that five features of the MIR (57) unjustifiably interfered with genuine partner relationships. (58) Justice Blake concluded by proposing less intrusive immigration measures; (59) however, he did not exercise the court's right to readily ignore or adapt the Rules. (60)

Justice Blake's decision was a momentary triumph for the Claimants as the Home Department quickly appealed. (61) After a brief review of the facts and Justice Blake's decision, Lord Justice Aiken laid out eight issues (62) to be considered by the Royal Courts of Justice. (63) He found Justice Blake correctly characterized the...