Diana Baxter

It’s all about the money!

22nd December 2023 By Diana Baxter

Just a couple of weeks after announcing, seemingly without any apparent consultation or forethought, that the minimum income requirement (MIR) for spouse visa applications would increase from £18,600 to £38,700, the Home Office has changed its mind and may increase this initially to only £29,000.

As it seems the threshold for the MIR is still open for debate (or rather subject to change with every unfavourable newspaper headline), I thought now was a good opportunity to give some thoughts on the MIR.

The minimum income requirement applies to visa applications for the spouse, fiancé and unmarried partners of British citizens and those settled in the UK, as well as the partners of some additional migrants with limited leave, such as refugees and those with humanitarian protection, as well now as EEA nationals who have been living in the UK since before Brexit. The MIR was introduced in July 2012 with the introduction into the Immigration Rules of Appendix FM and heralded the start of the current Home Office approach to abandon the long-standing use of numbered legislation with a variety of confusing letters and numbers (and setting the scene for the truly incomprehensible Appendix EU!). Prior to 2012, the Home Office approach was a more nuanced and flexible financial test, requiring applicants to show they had sufficient funds to maintain and accommodate themselves and their dependents in the UK without recourse to public funds (to which they would not be entitled on a spouse visa, in any event), a financial test still used for parent and adult dependent relative visa applications, as well as for those with UK partners receiving disability-related benefits.

Since 2012, we at Wesley Gryk LLP have been at the forefront of advising couples and families on the MIR and its accompanying Rules; as well as training the trainers (other lawyers and advisers). One of the key points I explain to clients and other advisers when discussing the financial requirements is not to try to make sense of them – Appendices FM and FMSE set out a very prescriptive set of rules and requirements not only for the level of income itself, but also the sources and evidence that can be used to demonstrate the requirement is met. Some of the logic in these Rules is hard to find, and it is not uncommon to come across millionaires who fail to meet them (because their money is tied up investments rather than sitting in the bank, or because the high-earner in the family is the applicant themselves overseas and this cannot be relied upon), while others can meet the requirement despite not actually being able to support themselves (for example, the applicant landlord whose rental income is £18,600 but in reality is paying out more than this in their buy-to-let mortgage payments). As a mantra I often repeat, it’s not about showing how much money you have, but rather about complying with the often bizarre set of Rules and requirements to satisfy the decision-maker.

The lawfulness of minimum income requirement itself has already been subject to legal challenge in the case of MM & Otrs which culminated in a Supreme Court judgment in 2017. Although the MIR was considered to be overly prescriptive, inflexible and disproportionately affected women, certain ethnic groups, regions and age-groups, the Supreme Court did find it acceptable in principle (with some caveats about the best interests of relevant children being sufficiently taken into account). Given the Home Office already won this battle, why create a new one now by raising the figure so disproportionately? The Home Office is correct that the £18,600 figure has not changed since 2012, but it has proposed an increase to £38,700 (which might now come in stages). This is a 108% increase.

Neither the cost of living nor people’s income has risen this much since 2012. In 2012, the average median earnings for full-time employees in the UK was £26,472. It is now £34,963[1]. This is a 32% increase. According to the Bank of England CPI inflation calculator, £18,600 in 2012 would only be £25,636 now[2]. This is a 38% increase. So how can a 108% increase possibly be justified?

So instead of pushing ahead with an increase in the MIR that is unjustifiably high, perhaps the Home Office and its Ministers could take a bit more time to think this through and adjust to a figure that corresponds more accurately to have people’s incomes and salaries have changed in the 10 years since 2012. This could save much heartache for families and also much litigation for the Home Office.

And if change is on the cards, then this should also be the opportunity to add in more flexibility to the MIR Rules so they better reflect the ability of applicants and their families to support themselves. If the high earner in the family is the applicant themselves (rather than their British spouse) then the family should be able to rely on the applicant’s employment/self-employment income and/or job offer in the UK to satisfy the MIR. If savings are held in stocks, shares or other investments in a regulated financial institution, then families should be able to rely on these without suffering a financial penalty to cash them in. If applicants or their partners are newly self-employed but can show regular income, they should not have to wait until after the financial year ends to apply. Applicants with children should not be made to suffer family separation of up to six months or longer in order to show sufficient length of employment. These are just a few suggestions of how the MIR could be proportionately increased while at the same time being revised to ensure they operate in a fair and just manner that allows applicants and their partners to demonstrate how they can support themselves living in the UK.

Please feel free to contact us should you want advice regarding your family’s eligibility for a UK visa.

[1] https://www.statista.com/statistics/1002964/average-full-time-annual-earnings-in-the-uk/

[2] https://www.bankofengland.co.uk/monetary-policy/inflation/inflation-calculator

Victims of domestic violence stranded overseas finally have a route of re-entry to the UK

7th December 2023 By Diana Baxter

In a week dominated by bad news for family migration rules, we are pleased by the publication today of a new Appendix Victim of Domestic Abuse (Appendix VDA) which, for the first time, provides a specific route of re-entry to the UK for victims of domestic abuse abandoned overseas. The changes come into effect on 31 January 2024.

This is a historical moment for us, as we have been working closely alongside Southall Black Sisters and others over the last decade to support client victims of transnational marriage abandonment.

Transnational marriage abandonment (TMA) is a form of domestic violence. It affects spouses who have been resident in the UK as the partner of a British or settled person and are then deliberately stranded overseas by their British partner or family. Until now, such victims have not been able to benefit from the domestic violence rules as these have always required the applicant to be present in the UK.

For the past 10 years, we have been supporting victims of TMA to seek alternative routes for re-entry and to remain in the UK ‘outside of the rules’. These cases are usually very complex and their success has often relied on the discretion of individual decision-makers rather than published policy or rules. It has also been the case that, by not being able to secure their long-term immigration status quickly, victims of transnational marriage abandonment then face greater hurdles in the family courts when trying to re-establish custody of children they have been forcibly separated from.

Awareness of transnational marriage abandonment was raised following research by S Anitha at the University of Lincoln, whose report was presented to the House of Commons in early 2016 with an expert panel including Barry O’Leary. In 2017, the Family Court amended its definition of domestic abuse to include TMA. Since then, we have been working with ILPA, Southall Black Sisters, Dawson Cornwell and Rights of Women to advocate for a change to the Immigration Rules to create a route for indefinite leave to enter as a victim of domestic abuse.

However, it was the landmark ruling by the High Court in the case of AM v SSHD in October 2022, when Mrs Justice Lieven held that victims of transnational marriage abandonment are unlawfully discriminated against because they are outside of the UK. Unlike victims of domestic violence inside the UK, there is no current provision in the Immigration Rules or policy guidance for victims of transnational spouse abandonment to apply for indefinite leave under the domestic violence rules. Such discrimination was held to be unlawful and a disproportionate interference with their rights under Article 8 European Convention on Human Rights (ECHR) (Read more in this article by the instructing solicitor, Nath Gbikpi).

The ruling in AM finally meant the Home Office needed to make provision to allow victims of transnational marriage abandonment to be treated like other victims of domestic violence who are in the UK, and therefore provide a route to allow them to apply for indefinite leave. With today’s Statement of Changes, the Home Office has now created a route to indefinite leave to enter for victims of domestic abuse.

Sudan crisis highlights why UKVI shouldn’t hold on to passports while processing applications

4th May 2023 By Diana Baxter

We were very proud this week to have helped a Sudanese father-to-be successfully evacuate to the UK despite his passport being held by the now closed UK Visa Application Centre in Khartoum. Sadly, many others have not been so fortunate as it is estimated that thousands of Sudanese nationals are trapped inside Sudan upon the outbreak of civil war with their passports retained by the UK and other visa authorities.

Such visa applicants are likely to be family members of British citizens, skilled workers and students resident in the UK, whose passports have been held by UKVI (or on its behalf, by the company TLScontact) for varying lengths of time. They may even include British citizens applying for Certificates of Entitlement to the Right of Abode or new passports. The last few years have seen significant delays in processing of UK visas overseas, first due to Covid (when visa offices abroad were also closed without notice, trapping applicants’ passports inside for months) and then following the Russian invasion of Ukraine. Throughout 2022, family settlement visa applications regularly took up to six months for a decision and, while the timing of these has improved recently, refugee family reunion applications are averaging 12 months or longer for a decision.

This week, we were contacted by a distraught refugee in the UK whose wife applied for refugee family reunion more than 12 months ago yet she still has no decision and her passport is still held at the VAC in Khartoum. Such delays are not unusual with refugee family reunion processing yet UKVI continues to insist that passports are retained for the decision making process, unless additional fees are paid (and not universally available) to the private contractor for a ‘keep my passport’ service. The continued logic for this is increasingly hard to justify as UKVI transitions to a digital only immigration status, where applicants’ identity can be determined through biometrics and a check of biometric passports and where visa applicants in the UK (as opposed to those applying from overseas) are, for the most part, no longer required to submit their passports for consideration.

We sincerely hope and encourage UKVI and TLScontact to assist those affected by their passport loss at the TLS VAC in Khartoum by:
• immediately sending each individual affected a formal and personalised (with the relevant passport details) confirmation of the loss of their passport;
• urgently considering their outstanding visa applications and, if successful, facilitating their entry to the UK despite the lack of passport (a FAV (‘form for affixing a visa’) can be used in these circumstances).

Wesley Gryk Solicitors maintains its top tier rankings for 2023

20th October 2022 By Diana Baxter

We are delighted to announce that Wesley Gryk Solicitors LLP continues to be ranked as one of the UK’s leading Immigration firms by both Chambers 2023 and the Legal 500 2023.

WGS is ranked as a Tier 1 firm by the Legal 500 2023 for ‘Immigration: Human Rights, Appeals and Overstay’ and by Chambers 2023 for both ‘Immigration: Human Rights, Appeals and Overstay’ and ‘Immigration: Private’.

All of our three partners, Alison Hunter, Barry O’Leary and Diana Baxter, are ranked as ‘Leading individuals’ by the Legal 500, with senior solicitor Katie Dilger listed as a ‘Key lawyer’.

Described by Chambers 2023 as a “fantastic firm”, partners Alison Hunter (“absolutely fantastic”) and Barry O’Leary (“truly outstanding”) are ranked as Band 1 lawyers in two immigration categories, and Diana Baxter (“a star lawyer in the ascendant”) is in Band 2. For private immigration work, senior solicitor Katie Dilger is an Associate to watch.

We are particularly proud of our fantastic testimonials this year:

‘They know their stuff like no-one else. At Wesley Gryk, clients are guaranteed to have a service which is second to none. They are at the top of their game in relation to tactics, case preparation, and expertise in the areas of immigration law they practice in. Briefs are always prepared to an exceptionally high standard.’

‘Besides the outstanding technical competence, the relationship with clients is very humane, which provides much needed reassurance and comfort during stressful moments.’

‘The level of expertise demonstrated by Wesley Gryk Solicitors was exceptional. Their lawyers provided excellent guidance, and a deep understanding of the Home Office was used with good impact.’

SBS Partnership Extended for Women Fleeing Gender-based Violence

31st March 2022 By Diana Baxter

We are pleased to announce the extension for another year of our partnership with Southall Black Sisters, a not-for-profit women’s rights organisation established to meet the needs of Black (Asian and African-Caribbean) women facing domestic and gender-related violence.

Under the partnership, SBS has funding to refer women who seek their assistance for legal advice and representation in immigration applications and appeals to experts in our team at Wesley Gryk Solicitors LLP. The partnership has been a great success during its pilot year in 2021, enabling us to represent women in immigration matters who are unable to access legal aid due to the nature of their immigration problem, but who cannot afford legal fees and disbursements.

In its pilot year, Wesley Gryk Solicitors LLP has advised and represented women fleeing violence from India, Pakistan, Jamaica and Zimbabwe. This has included: assisting victims of transnational spouse abandonment to return to the UK and obtain indefinite leave to remain as victims of domestic violence; assisting a woman with complex mental illnesses stemming from childhood sexual violence with a successful appeal under Article 3 ECHR based on her medical condition and risk of suicide on return overseas; and assisting a refugee fearing honour-based killing in Pakistan with a successful appeal to the Upper Tribunal following refusal at the First Tier Tribunal.

We look forward to another year working together with Southall Black Sisters to seek immigration solutions for women facing gender-related violence.