February 18 2016

Sponsoring an overseas spouse

Associate Professor of Law Dr Helena Wray (pictured right) and her Middlesex colleague, Co-Director of the Social Policy Research Centre Eleonore Kofman (pictured left), consider the latest evidence ahead of the Supreme Court hearing on the minimum income requirement to sponsor an overseas spouse.

On 22 February 2016, the Supreme Court will begin hearing a human rights appeal on the current very high minimum income requirement (MIR) that must be met by a British citizen or resident who wants to sponsor a spouse who comes from outside the European Economic Area. The MIR requires the UK sponsor to have an income of at least £18,600 per annum. This is the level at which, according to an analysis carried out by the Migration Advisory Committee, a couple with no children will cease to be eligible for state benefits such as housing benefit or working tax credit.[1] However, although the threshold applies to a couple, it must be met through the sponsor’s own resources. The incoming spouse’s own prospective earnings cannot count towards meeting the MIR.

The problem is that the MIR, which is believed to be the highest relative income threshold for sponsorship in the world, cannot be met by about 40 per cent of British citizens in work.[2] It has caused the separation of thousands of couples who cannot live together in the UK, including many families who have children. The appellants, who are appealing against the rejection of their claim by the Court of Appeal, argue that the rule is a breach of Article 8 of the European Convention on Human Rights (right to respect for family life). We have worked intensively on this issue, including on a report published in September 2015 by the Children’s Commissioner and discussed here. We have also provided expert evidence to the applicants to the legal proceedings.

Here, we discuss the latest evidence showing the extent to which the minimum income requirement has affected the number of successful applications made under the immigration. The effects of the MIR are likely to be an important part of the discussion in the Supreme Court. In our work for the Children’s Commissioner elsewhere, we have shown that about 15,000 children have been affected by the MIR. This blog post focuses on the number of adult applicants who have been affected and how this might translate into discriminatory effects on the British population.

Immigration statistics

Detecting the effect of policy through the published immigration statistics is not straightforward as numbers are not broken down by reasons for refusal. However, looking at overall patterns allows some tentative conclusions to be drawn and the published immigration statistics suggest that the MIR has had a significant effect on the number of successful spouses, particularly when the overall context is taken into account.[3] Figure 1 shows the number of partner visas issued annually since 2006. It shows a particularly sharp drop in 2013 and a partial recovery in 2014, although still to a figure well below 2011. While only figures for the first three quarters of 2015 are available, it seems that 2015 would have ended at a similar level to 2014.

This is consistent with the anticipated effects of the policy. In its Impact Assessment, the government estimated that implementation of the MIR would see successful applications on the family route decrease by between 13,600 and 17,400 per year.[4] The actual reduction, although significant, seems to have been rather less than that. In part, this is because the Impact Assessment was talking about the effect on all family members, whereas it is only partner applications that are being discussed here.  Another factor is that 2012 does not represent a reliable starting point, for two reasons. Firstly, the MIR was implemented in July 2012 and it is likely that applications subject to it started to be decided towards the end of that quarter and in the last quarter of 2012. Table A shows the quarterly figures for partner visas issued in 2012 and show a small reduction in the third quarter and a sharp fall in the last quarter of 2012. 2012 is therefore not a reliable base point for subsequent years and, without these falls, the annual figure is likely to have been similar to that in 2011. If the average of the first two quarters in 2012 had applied in the last two quarters, the total would have been 33,258 compared to the 2011 figure of 33,496.

2012	Partner visas issued
Quarter 1	8,339
Quarter 2	8,290
Quarter 3	7,867
Quarter 4	7,012

Table A – Taken from Table vi_01_q_f

However, numbers in 2011 were also depressed. In October 2010, the government introduced a pre-entry language test for spouses (discussed here and here). This would have caused a significant reduction in the number of applications during the succeeding period as all affected applicants (the majority of those applying) would have had to find and pay for tuition and take the test, possibly more than once. Some applicants would have never passed the test but many others would have done so eventually and applied, only to find that they were now affected by the MIR. The true number affected by the MIR is therefore likely to be greater than that suggested if 2011 is taken as the base point. It is impossible to pinpoint exactly what the baseline should be, but it is likely to be somewhere between the 2010 figure (38,414) and the 2011 figure (33,496).

To the extent that numbers have recovered since 2014, it is probable that a substantial proportion of this is due to increased numbers taking and passing the language test rather than to applicants meeting the MIR. While the language test may be an insuperable obstacle for some, most people will eventually pass it. The position is different for the MIR. If it does not increase, more people are likely to become eligible through wage inflation. The Migration Observatory has estimated that, in 2015, 41 per cent of British nationals working as full-time or part-time employees did not earn enough to meet the MIR (for sponsoring a spouse but no children) compared to 47 per cent in 2012.[5] Others will try to find ways to meet the MIR, although there may be adverse impacts on their own and their children’s well-being.[6] However, the evidence is that many people affected by the MIR, including those in socially valuable (and female-dominated) occupations, will never be able to increase their earnings to the level needed and most of any reduction in numbers will be permanent.[7] Even the implementation of the National Living Wage in April 2016 will not change the picture, as the hourly rate paid for 40 hours per week and 52 weeks per year still gives an annual income of only £14,976, significantly less than the MIR.

There are two other factors. The first is that the MIR was not the only change introduced in 2012. However, the other changes are likely to have had a very small impact on numbers. In its Impact Assessment, the government estimated that between 96 and 99 per cent of the anticipated reduction in numbers would be due to the MIR.[8] Secondly, there was a general decline in numbers of successful applications in the years preceding the implementation of the MIR. It would be wrong however to assume, as the government has argued, that this decline would have continued. Figure 2 shows the number of successful applications from 2000. The method of counting changed part-way through the period, but the overall pattern is consistent. This shows that there was a rise in numbers between 2000 and 2005 which then reversed in 2006. 2010 saw a small rise before the falls in subsequent years following implementation of, first, the language test and, second the MIR. It cannot be known whether, without these intervening factors, numbers would have continued to increase, remained constant or resumed a downward path. The latter would not have continued indefinitely however or visa issues would eventually have come close to zero, an improbable scenario and one that is inconsistent with the general pattern of fluctuation. In its Impact Assessment, the government anticipated that, without the 2012 changes, the number of admissions would have remained constant and that is the approach we have adopted.[9]

In summary, while it is difficult to draw any detailed or firm conclusions from the published statistics, the most likely scenario is that implementation of the MIR caused a significant drop in the number of visa issues. While it is not possible to say with any precision how large this has been, an approximate idea of its magnitude on a yearly basis may be obtained by contrasting the average figures for 2010 and 2011 with the average for 2013, 2014 and 2015 (the last figure annualised from three quarters). This suggests an annual drop of about 10,000 visas per year. As discussed earlier, this is likely to be a mostly cumulative reduction so that the absolute numbers affected by the MIR will increase every year that it is in place.

Discrimination

A global decrease may disguise more marked decreases among some groups. It is likely that some applicants will find it harder than others to meet the MIR because of the characteristics of their sponsor. As information about sponsors is not available, this can only be established by making certain assumptions. It is assumed here that female applicants have male sponsors and vice versa, even though the figures include a small proportion of same sex and civil partners. It is likely that most applicants from countries in which arranged marriages are common are sponsored by someone from the same ethnic background although, again, this will not be universally the case. It is also likely that a percentage of transnational marriages involving other nationalities with a history of immigration to the UK are contracted with partners of the same background, although there is less evidence of this. Thus, the nationality of the sponsor can stand as a partial proxy for the ethnicity of the sponsor and this may intersect with gender or immigration status.

Figure 3 shows that Asia is the region that has been most affected numerically, because it has the largest number of applicants, and it shows a clear downward trend in applications despite some large fluctuations. Asia is likely to mean primarily Pakistan, Bangladesh and India; these countries were among the top five countries to whom partner visas were issued at the start of 2010 (the other two were United States and Turkey). However, the decreases were not evenly spread among these countries. As Figure 4 shows, Pakistan and, to a lesser extent, Bangladesh declined significantly, while India saw a much smaller reduction. This is likely to reflect the weak position of sponsors of Pakistani or Bangladeshi origin in the UK labour market (discussed later). Figure 3 also shows that other regions may have seen a greater proportionate decrease starting from a lower base, and it is important to look also at the picture in individual countries.

 

A more detailed picture of who has been affected by the language test specifically can be obtained from Table 2, which shows admissions for 22 countries, in the three quarters before the implementation and the first three quarters of 2015:

Country	Q4 2011, Qs 1+2 2012	Qs 1, 2  and 3 2015	%  Change	Change in number of visas issued
Afghanistan	382	360	-5.76%	-22
Algeria	241	207	-14.11%	-34
Australia	584	502	-14.04%	-82
Bangladesh	1,521	1,114	-26.76%	-407
China	699	750	+7.23%	+51
Eritrea	67	71	+5.97%	+4
Ghana	486	354	-27.16%	-132
India	2,181	2,374	+8.85%	+193
Iran	235	239	+1.70%	+4
Iraq	456	196	-57.02%	-260
Jamaica	457	237	-48.14%	-220
Nigeria	740	367	-50.41%	-373
Pakistan	4,347	3,871	-11.87%	-516
Philippines	861	744	-13.59%	-117
Somalia	117	41	-64.96%	-76
S. Africa	515	461	-10.49%	-54
Sri Lanka	581	619	+6.54%	+38
Sudan	87	85	-2.35%	-2
Thailand	762	651	-14.57%	-111
Turkey	719	517	-28.09%	-202
USA	1,776	1,509	-15.03%	-267
Zimbabwe	113	113	–	–

Table 2 – drawn from Table vi_01_q_f

This shows that some countries have been particularly badly affected by the MIR. The top five countries in terms of percentage falls are Somalia (-64.96%), Iraq (-57.02%), Nigeria (-50.41%), Jamaica (-48.14%) and Turkey (-28.09%). Bangladesh and Ghana also recorded falls of more than 25 per cent. Numerically, the biggest reductions were for Pakistan (-516), Bangladesh (-407), Nigeria (-373), the United States (-267) and Iraq (-260). It also confirms the supposition above that those affected within Asia came predominantly from Bangladesh and Pakistan, reflecting the relatively low earnings of sponsors from those countries. The sponsors of those coming from Somalia and Iraq are likely to be refugees or former refugees, whose earnings are also likely to be low.

It was widely anticipated that female sponsors would be more affected than male sponsors. Male sponsors have always outnumbered female sponsors. In 2011, for example, there were 13,500 wives (male sponsor) and 5,800 husbands (female sponsors) globally, i.e.  30 per cent of sponsors were female. In the same year, however, 70 per cent of Jamaican sponsors, 50 per cent of Somali and Nigerian sponsors, 47 per cent of Turkish sponsors and 39 per cent of Ghanaian sponsors were female i.e. many of the biggest falls were for countries which had higher than average numbers of female sponsors.[10]

The suggestion that female sponsors have been particularly affected is strengthened if the trend since 2006 is considered. Table 3 shows that the gap between male and female sponsors was already widening between 2006 and 2012 and this accelerated in 2013 and 2014 after implementation of the MIR. As figures for gender applications are not available after 2014, we do not know the latest position.

Year	Wives (male sponsors)	Husbands (female sponsors)	Female sponsors as percentage of total
2006	30,930	16,220	34.41%
2007	15,080	28,110	34.92%
2008	24,130	12,680	34.45%
2009	19,490	9,160	31.97%
2010	19,050	9,065	32.24%
2011	16,800	7,265	30.19%
2012	14,595	6,395	30.47%
2013	11,785	4,010	25.39%
2014	11,895	4,045	25.38%

Table 3 – taken from Immigration Statistics, July-September 2014, Table ad_03_f

To summarise, while it is difficult to draw firm conclusions from the published statistics, they indicate that:

• The implementation of the MIR had a significant effect on the number of successful applications and this is likely to be a long term reduction
• Some countries have been particularly badly affected and this is likely to be due to the relatively low earnings of their UK sponsors because of their ethnicity, immigration status and/or gender
• There has been to a widening of the gap between the numbers of successful applications made by men and by women.

UK data on discrimination

The immigration statistics suggest that the MIR discriminates by gender and ethnicity and this is supported by the data about the UK as a whole, which suggest that not only gender and ethnicity but age, education and region of residence are also factors. A recent report by the Migration Observatory at Oxford University showed that, in 2015, 41 per cent of the adult working population would be unable to meet the MIR but 55 per cent of women, 53 per cent of those aged 20-29, 45 per cent of the non-white population and 53 per cent of those without degrees would be in that position.[11] The relatively high wages in London mean that these figures are even higher if only those outside London are considered: 57 per cent of women, 57 per cent of those aged 20-29, 48 per cent of the non-white population and 53 per cent of those without degrees who live outside London cannot meet the MIR. In overall terms, 48 per cent of those living in the north-east of England cannot meet the MIR compared to 27 per cent of those living in London.[12] These factors will combine so that, for example, a young ethnic minority woman living outside London will be at a particular disadvantage.

There are a number of reasons for the gender pay gap, such as unequal care responsibilities and a divided and segmented  labour market so that, for example, 80 per cent of low-paid care and leisure workers are women, but only 10 per cent of skilled trade workers. Women’s work is frequently under-valued and they may experience discrimination, in relation, for example, to maternity leave and subsequent return.[13]

While the gender pay gap has decreased since the mid-1990s (it was 17.4 per cent for full-time employees in 1997), especially in relation to full-time earnings, the rate of decrease has been slow in recent years and remains very large if full and part-time working are taken into account. In April 2015, the gender pay gap, based on median earnings, was 9.4 per cent for full-time employees but 19.2 per cent for full and part-time employees combined.[14] This figure does not take overtime into account, which is undertaken at far higher levels by men, and which consequently will help more men than women achieve the MIR.

In terms of ethnicity, there is also an ethnic pay gap based to a great extent on occupation segregation, resulting in considerable polarisation in the earnings of different ethnic minorities.[15] Thus, ethnic differences too are large in relation to earnings. As Figure 6 shows, Bangladeshis, Pakistanis and other Asian minorities have much lower levels of earnings than the average. In London, for example, 52 per cent of the Bangladeshi and 37 per cent of the Pakistani populations were in low-paid work, compared to 28 per cent of the Chinese, 24 per cent of the Indian and 18 per cent of the white British populations.[16] In all cases, women earn less than men from the same ethnic group, thus reinforcing relative disadvantage.

The gender pay prevails in all regions although it is less in some less well-paid regions. Part-time earnings are low for women and men, but many more women are working part-time.

Table 4 – Median hourly earnings of employees in English regions, by place of work (Source: ONS, ASHE 2012, Table 7.6a)

	Women F/T £	Women P/T £	Men F/T £	Men P/T £	Full-time gender pay gap (%)
North East	10.94	7.67	11.95	7.70	8.5
North West	11.27	7.81	12.34	7.61	8.7
Yorkshire and the Humber	10.94	7.75	12.03	7.33	9.1
East Midlands	10.54	7.66	11.95	7.59	11.8
West Midlands	10.93	7.89	12.26	7.46	10.8
East	11.30	8.06	12.90	7.56	12.4
London	15.98	9.79	18.16	8.67	12.0
South East	12.33	8.57	14.50	8.07	15.0
South West	10.93	8.20	12.21	7.60	10.5
England (all)	12.09	8.14	13.46	7.77	10.2

N.B. Hourly earnings excluding overtime. Data are for Government Office regions.

To conclude, the most recent data confirms the claims that the MIR would reduce the number of successful applications and that the effects would be felt by some groups more than others. The immigration statistics give support to the view that women and some ethnic or national groups would be particularly affected. Background information suggests that there is likely also to be a differential impact by region and by age.

How to reduce the discriminatory impact of the MIR

The MIR is excessively onerous and there are strong arguments that it should be reduced.[17] If the government wishes to reduce the discriminatory impact of the MIR, one way to do this would be to allow the prospective earnings of incoming spouses to be taken into account and to permit other family members to provide regular payments to make up the differential until the couple are on their feet financially. Both of these were permitted before the rules changed in 2012 and their reinstatement would go a long way to meeting the government’s concerns that a couple might have an insufficient income.

The government seems to be under an erroneous impression that incoming migrant spouses are not active in the labour market. In the court proceedings, it has referred to an unpublished analysis of the 2010 Labour Force Survey which suggests a low UK employment rate for migrant partners from some of the most important countries for spousal migration after 12 months in the UK: only 44 per cent of men and 23 per cent of women were employed one year after admission.[18]

It seems doubtful that much reliance can be placed on one year’s figures taken from a period of economic crisis (and when the spouse would not anyway be entitled to welfare benefits which cannot now be claimed until five years after admission). Figures from a much longer period would be needed to obtain a reliable picture and the position is dynamic. For example, the labour market participation rates for women of Bangladeshi and Pakistani origin have been improving in recent years and the long-term picture is much more positive as the government’s own analysis has shown.

A 2011 report showed that 66 per cent of all male migrant partners were employed compared to 64 per cent for all UK males.^[19]  Among those who subsequently became a citizen it was even higher (68 per cent) as it was for most of those from less developed countries. For example 73 per cent of Pakistani, 74 per cent of Indian, 79 per cent of Bangladeshi, 74 per cent of Nigerian and 77 per cent of South African males age 16 years and over were in full or part-time employment. Thus, the majority of female sponsors, including those from less well-paid ethnic minorities, can count on their partners working.

Male partners earn higher median wages than women partners once they are in the UK (see Table 5).  For all male spousal migrants, the average was £21,300, with considerable divergence between nationalities from Bangladeshi men who earned £10,400 to US nationals who earned £28,000. Rates of employment were lower for women spousal migrants: 44 per cent of such women were in employment compared to 53 per cent for the female population as whole. Earnings were also lower than men’s although close to the national average for women generally at £15,000 per annum.

But even low earnings are not insignificant in terms of helping applicants meet the MIR as they are often enough to compensate for any deficit in the sponsor’s earnings. For example, a sponsor earning £15,000 per annum (or close to the annualised equivalent of the living wage) would need his or her partner to earn only £3,600 per annum to bring them up to the threshold £18.600 per annum. Of course, there will still be some cases where the position of sponsor or partner is such that there is insufficient certainty that the couple can meet the MIR, whatever its final level might be, but it seems unfair and disproportionate not to allow couples the opportunity to show that they can meet it through other ways than the sponsor’s earnings, and doing so would reduce the MIR’s discriminatory impact.

Table 5:  Median earnings of those who have come to the UK as a spouse, or civil or other partner^[20]

	Men	Women
Nationality	Median wage	Median wage
Pakistan	£13.600	*
India	£13,700	£14,300
United States	£28,000	£18,300
Bangladesh	£10,400	*
Thailand	*	£7,000
Nigeria	£14,900	£13,800
South Africa	*	£15,000
United Kingdom+	£24,900	£16,800
Whole UK Population	£24,000	£15,000
All migrants	£20,800	£15,600
All spouses	£21,300	£15,000

Conclusion

The MIR has been one of the most controversial of all recent immigration policies because of the number and range of British citizens and residents who are affected. The outcome of the Supreme Court case is eagerly awaited by many. We have shown how serious the effects have been, the way in which they discriminate between British citizens, and how relatively simple it would be to reduce its negative impact while still respecting government concerns about welfare reliance by incoming migrants or families struggling on very low incomes.

References

[1] Migration Advisory Committee, ‘Income Requirement for Sponsorship Under the Family Migration Route‘, October 2011.

[2] Children’s Commissioner ‘Family Friendly? The impact on children of the Family Migration Rules: A review of the financial requirements‘ (August 2015) p.60. Only Norway has a higher absolute threshold but wages in Norway are significantly higher.

[3] ‘Immigration Statistics Quarterly Release for the Period to September 2015‘ published 26 November 2015.

[4] Home Office ‘Impact Assessment on Changes to Family Migration Rules‘, IA no: HO0065 12 June 2012 p.20.

[5] The Migration Observatory, ‘The Minimum Income Requirement for Non-EEA Family Members in the UK‘, January 2016, p.10.

[6] Children’s Commissioner n.2 pp. 53-54.

[7] See, for example, Children’s Commissioner n.2, pp. 59-63; All-Party Parliamentary Group on Migration ‘Report of the Inquiry into New Family Migration Rules‘, June 2013 pp. 21-27.

[8]  Impact Assessment n.3, p.20.

[9] Impact Assessment, n.3, p.15.

[10] Numbers taken from ‘Immigration Statistics, July-September 2013‘, Table ad_03_f.

[11] Migration Observatory n.4, p. 11.

[12] Ibid p. 12.

[13] H. Metcalfe (2009) ‘Pay gaps across the equality strands: a review‘, Equality and Human Rights Commission; Fawcett Society (2015) ‘Equal Pay Day Briefing‘.

[14] ‘Annual Survey of Hourly Earnings provisional report 2015‘.

[15] Brynin, M.  and A. Güveli (2012) ‘Understanding the ethnic pay gap in Britain‘, Work, Employment and Society 26(4): 574-87.

[16]  ‘London’s Poverty Profile‘ (based on the LFS 2012-2014).

[17] See, for example, Children’s Commissioner n.2, part 5.

[18] It is probable that this statistic refers to all migrants from those countries of origin living in households as the LFS does not ask about route of entry.

[19] ‘Family Migration: Evidence and Analysis‘ (2011) 7.

[20] Table 8, Family Migration: Evidence and Analysis (2011) 8.

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Tags: discrimination, ethnicity, European Convention on Human Rights, families, gender, government, human rights, immigration, law, legal, migration, policy, politics, supreme court, women

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