Four months after our wedding, H’s telephone rings.
A voice barks questions. “Full name? Date of birth? Nationality?”
Who is this?” H asks, looking at me. This is Capita, the company that the British Home Office has outsourced its bullying tactics to. This is the first of many cheery conversations we will have with them over the following months.
The woman on the other end of the phone demands to know why H is still in the UK. “Your visa was refused in April”, she tells him. This is the first we’ve heard about it.
“My spouse visa?” He asks.
“Spouse visa?” Her voice falters. “My records state that your application was terminated and that you have been sent a letter…”
This is H’s wife” I tell the telephone. “What’s going on?”
Your husband’s visa application was terminated in April. You were sent a letter with all of the details.”
We never received any letter,” I tell her. “What did the letter say?”
I am not at liberty to disclose that information.”
Well can you send us the letter again?”
You will have to contact the Home Office about that.”
What the hell?”
This isn’t how it was supposed to be. Our application was supposed to be put on hold.
On 9th July 2012, a year and a half before H and I were married, a new rule came into effect in British Immigration Law. This set a minimum income of £18,600 for anyone wishing to ‘sponsor’ a spouse or partner from a non-EEA country to live with them in the UK. Any wage your partner earns is disregarded as it ‘cannot be relied upon’.
47% of the working population earns below £18,600. I have never in my life earned even half of this, having spent much of it as a traveller, part-time worker or full-time volunteer. An annual salary at the British minimum wage comes in at approximately £13,200 per annum at a full time rate.
At the time we received the phone-call, this law was being challenged in court, with the argument that it contravenes Article 8 of the Human Rights Act, the right to a private and family life. The original court ruling had gone against the Home Office, in favour of the claimants, known as MM. This meant that the rules were considered unfair and discriminatory. However, the Home Office had appealed the decision. Over 3,000 cases just like ours had been put on hold, waiting for the decision.
I call our lawyer and ask what the hell is going on. He tells me the only thing he’s received from the Home Office is an envelope containing my passport, our marriage certificate and an electricity bill we had used for proof of address. The envelope contained nothing else, no letter.
We decide to leave the country and go to live in Spain, since I already speak some Spanish. We have the right, under EU Law, to move freely, together, through any country I’m not a citizen of. Our lawyer agrees that this is a good idea, that although we should technically have the right of appeal, it’s unlikely we would win, and the process would be very costly. We tell him we want to leave on 14th July, and he agrees to contact the Home Office directly to request H’s passport.
Time ticks by.
On 9th July 2014, on the two year anniversary of the family immigration rules coming into effect, an All Party Parliamentary Group meeting is held in the London Houses of Parliament. H and I go to hear a panel of speakers from across political parties speak out against the rules. People representing various support groups and service providers, along with people who, like us, are directly affected, speak out about families which have been ripped apart.
A demonstration follows outside the Home Office.
On 11th July, 2014, right after the two year anniversary of the minimum income threshold coming into effect, the judging of the Home Office appeal is handed down in the Court of Appeal:
“Court of Appeal has allowed Theresa May’s appeal on all three cases that were part of the MM & Ors vs SSHD case. This means they have deemed the rules brought into force on 9 July 2012 lawful. The Court of Appeal agreed the rules are discriminatory but said this was justified. They quoted a judge in another immigration case, Bibi, on the English Language Test – “All immigration law is inherently discriminatory”.” – from BritCits
3,641 spouse visa applications waiting on hold begin being processed. This figure doesn’t include applications like ours, which have already been refused, or all of the people who were waiting for the judgement before forking out £601 for the application. It’s impossible to come up with an accurate figure, but it’s certain that many thousands of families are affected.
We hear of one case where a spouse visa was denied as the British sponsor earned 69p a week less than the threshold. The government’s response on such cases is that there is no near-miss principle in the rules. Home Office lawyers declared that, “a belief in the link between higher income and the likelihood of better integration is rational.”
If you have children, the minimum income rises incrementally – you need to earn an extra £3,800 for one child, and an extra £2,400 on top of that for every subsequent child. One of the most touching sights at the Home Office demonstration was a woman holding baby twins, each with identical t-shirts: “Bring daddy home!” This is a case of a single mother who must earn £24,800 for her husband to come and live with her. A husband who, if he could live with her, will find a job and support his family, taking his wife and children off benefits. Aside from the indescribable cruelty that these rules inflict, it is also estimated that the UK will lose £850 million over ten years as a result of new visa restrictions on foreign spouses of British citizens. People on spouse visas were never eligible to claim benefits in the first place and the idea that this is somehow in the best financial interest of the UK is one of many lies that prop up the border regime.
14th July comes and goes. With the MM case overturned and the likelihood of a counter appeal uncertain, we realise our few options have mostly disintegrated. All we want to do now is leave the UK.
After some intervention by my MP, we are finally able to feast our eyes on a copy of the visa refusal letter, forwarded to me by her office over email. The decision letter is full of errors. The first decision for the refusal cracks me up.
Your representative has stated that your partner’s British passport and your marriage certificate would be forwarded on within 7 days of 08 February 2014, however, this evidence has not been provided to support your application.
We wonder how they managed to return these documents in the envelope supposedly containing the missing decision letter if they hadn’t received them to begin with. The letter also incorrectly says that we applied for the visa after the old one had expired, meaning H is considered an visa overstayer and has no right of appeal. I call the lawyer in a panic. He reassures me that the application was considered in time and he will dig out the proof of postage.
After six weeks with no news, the threatening phone-calls and emails start again from Capita. A series of conflicting information sends us round in circles. We knew the passport would need to be sent to the port of departure as they don’t trust people with their own passports these days. What we weren’t prepared for was to be told that we couldn’t go to France or Spain without written proof that we’re allowed into the country. All of the information I have says we have an inalienable right to travel there together, as I’m a British Citizen and H is my husband.
I write to the French Consulate in London and the Minister of the Interior of France by email. I email and telephone Capita, attaching all the legal documents and guides to the law I can find, and I write to the European Commission for advice through their service Your Europe Advice.
In theory, we have rights. In practice, it’s impossible to access them. Invisible walls are thrown up at every turn.
I get a phone-call from my MP one morning. The Home Office have acknowledged their mistake, that H is not an overstayer, his application was submitted in time, and he should have been given the right to appeal. This means that his application has gone back to the decision-maker at UKVI (U.K. Visas and Immigration). In theory, we can now withdraw the application and ask for the return of the passport.
A smarmy man greets us at the Schengen visa office in London, where we are attempting to apply for a visa for Spain. He informs us that he won’t accept our application a.) because we don’t have the passport, but also b.) because he said H needs to have a valid UK visa and residency permit that extends beyond the end of our stay in Spain. This is total bullshit, as confirmed by Your Europe Advice.
Under Article 5(2) of Directive 2004/38, as the family member of an EU citizen, you should have a right to obtain an entry visa free of charge and on the basis of an accelerated procedure since you will be travelling together to Spain.
This Directive applies to you and your husband regardless of his current immigration status since this should not affect your situation under EU law: You husband must be permitted to apply for a visa at the Spanish consulate in London and your husband must be allowed to travel with you to Spain and reside there with you. These rights were confirmed by the EU Court of Justice in the case of Metock (Case C-127/2008), in which the CJEU ruled that:
Directive 2004/38 precludes legislation of a Member State which requires a national of a non-member country who is the spouse of a Union citizen residing in that Member State but not possessing its nationality to have previously been lawfully resident in another Member State before arriving in the host Member State, in order to benefit from the provisions of that directive. We consider that this ruling is on point with your husband s situation.
It means that the national authorities cannot deny your husband the right to live with you in Spain and the Spanish consulate must issue your husband with an entry visa to Spain and once there issue you with a residence card as a family member. It also means that the national authorities cannot require your husband to return home to his country of origin in order to submit an application to obtain a visa to live with you in the country concerned. Your husband must be allowed to apply for a residence card in the EU country of destination since we consider that to require your husband to return to his country of origin would constitute an undue obstacle to your right of free movement and the right to enjoy the respect of your family life.
I ask the smarmy man for something in writing detailing the reasons for the refusal. He shakes his head and waves his hand dismissively at the computer screen in front of him, “It’s all there in black and white”.
We can challenge this decision through SOLVIT, but to do that we need to prove the application wasn’t accepted.
I write a curt letter to the Spanish Consulate in London, copying in both my MP and our lawyer. They offer us an appointment a few days later.
I take a day off work and book two train tickets during peak time to get to our appointment. We feel hopeful, spending the journey talking about what we’re going to do when we finally get to Spain.
On arrival at the Embassy, three women line up to shout at us from behind a plexi-glass window. One of them berates me for wasting her time. They won’t even look at the documents we’ve brought in, but ask a string of questions about H’s citizenship and personal situation, then make up a series of excuses, some of which contradict each other. We need the passport. We need the residency permit. We have to go back to Armenia. We aren’t even applying for the right visa. I show them the email from Your Europe Advice. “This is only advice!” one woman spits at me.
Again I ask for something in writing. They hand me a printed sheet with guidelines from the website, and pen an asterix by the phrase, Please note that you may only apply for a visa if you are resident in the UK and your residence permit is stamped in your passport or in a separated card.
I leave the embassy in tears.
We have just heard that H’s visa application has been refused for the second time, again receiving a decision letter full of errors, which even contradicts itself in places.
The whole immigration system is a joke. I consider writing a letter to the Daily Mail, “Government won’t allow immigrant to leave country!”
We can’t fight everyone, not all at the same time.
We decide to give in and go back to Armenia, via Istanbul. Turkey now issues e-visas, making it possible to apply for one without your physical passport. We can use this as proof that we will be allowed into the country, making the trip affordable, just about, for shallow pockets like ours in the 47%.