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03 May 2016

You can love a foreign national but it will cost you more than you can afford

6 mins

It has never been more expensive to fall in love with a foreign national. Sadly, it looks like it is only going to get more expensive. British citizens with non-European partners face being priced out of the UK with the constant raft of changes to the visa requirements for UK partners.

Earlier this month the government announced a consultation paper proposing new fees for proceedings in the First-tier Tribunal (Immigration and Asylum Chamber) and Upper Tribunal (Immigration and Asylum Chamber). If the proposals are brought in, they will result in a fee hike in excess of 500%.

Most families will hope never to have to step inside the Tribunal – it is only necessary where an initial visa application is refused. However, with the ever-complex requirements it is real possibility for some. Justice Minister Dominic Raab suggested that the fee hike was justifiable to protect British tax-payers and in so doing deliberately, and inaccurately, inferred that British tax payers are never involved in appeals in the Immigration Tribunal. That is simply not true.

Currently, a British citizen will need to demonstrate that they are earning £18,600 per annum before they can sponsor their partner’s visa to the UK. This minimum salary threshold applies to all applicants, with no regional variations. It also applies where a couple is returning to the UK after a period of living abroad and doesn’t take into account the actual living costs of the couple. The requirement has added complexities, including requiring the British citizen to be earning £18,600 for at least six months at the date of application. This means that families are being forced apart for periods of six months, even longer in some cases.

Extortionate application fees

In addition to meeting the income threshold, British citizens and their families are faced with increasingly high application fees. It has long been UK Visas and Immigration’s (UKVI) practice to increase fees in April each year. This year’s fee increase however took some people by surprise as it was introduced on 18 March 2016.

It now costs £1,195 for a foreign national to apply for a visa to join their British citizen partner in the UK. This is only the first of three applications that the applicant will need to make before they are able to settle in the UK, securing their family’s long term future together. This is because it takes five years of living in the UK before a foreign national partner can apply for indefinite leave to remain. At the current fees, it will cost a family nearly four thousand pounds in application fees alone. In real terms, is it a lot more.

Since April 2015, foreign nationals coming to live in the UK for more than six months have been required to pay an immigration health surcharge. The government’s position on announcing the levy was that:

    … the surcharge will ensure that those coming to work, study and join family in the UK make an appropriate financial contribution to the cost of the health services they may use whilst in the UK.’

It is an attractive soundbite but it ignores the fact that those who enter the UK with the right to work, which includes foreign national spouses, will already contribute through the payment of national insurance contributions and income tax. Furthermore, the surcharge is applied regardless of whether the applicant has private health insurance. The NHS surcharge will add another £1,100 at the current rates to a couple’s UKVI fees.

New English language requirements

It doesn’t stop there. On 21 January 2016, the Prime Minister announced that non-EEA migrants in the UK as partners or parents will need to attain level A2 of the Common European Framework of Reference for Languages when applying for further leave to remain after an initial grant of leave to remain in the UK.

English language testing for partners was initially introduced following an amendment to the Immigration Rules in November 2011, with applicants having to take and pass a Home Office approved English language test at a basic A1 level of English in speaking and listening. The requirement to take and pass an English language test as part of visa applications was the subject of lengthy litigation. In November 2015, the Supreme Court ruled that the requirement was not in itself discriminatory or contrary to article 8 ECHR but that the accompanying Home Office guidance could be incompatible with article 8 where compliance with the requirement to take and pass a test was impracticable.

Since being introduced, the list of approved test providers has undergone various changes. The most recent changes were introduced in April 2014 with the introduction of Secure English Language Testing (SELT). There are now only two recognised SELT test providers: Trinity College and IELTS, with applicants applying for a visa outside the UK being restricted to IELTS tests.

The Prime Minister’s announcement will see foreign partner’s having to take and pass a test at a higher level of A2 which is described as ‘waystage or elementary’. Whilst this ‘elementary’ level English may not, on the face of it, seem an onerous task, figures quoted by the British Council suggest that it will take an applicant between 180-200 guided learning hours to reach level A2.

This additional requirement seems excessive, given that foreign spouses need to demonstrate intermediate English at level B1 should they wish to settle in the UK. The changes will put further financial pressure on families who are already required to pay ever increasing Home Office application fees and the newly introduced Immigration Health Surcharge.

The truth is these constantly changing requirements put enjoying a family life in their home country out of reach for many British families. Those who don’t earn ‘enough’ face being separated for many months, even years, until their financial circumstances improve.

This article was first published by The Justice Gap

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