Jane Yilmaz and her husband, Altuğ, live in separate countries, but not by choice: Under current British family migration rules, Yilmaz’s income is too low to sponsor her spouse for a visa. Altuğ remains in his native Turkey, barred from permanently joining his wife and seven-year-old daughter, Ela.
A British citizen living in Plymouth, Yilmaz’s voice wavers with emotion when she describes how Ela has reacted to the indefinite separation.
“She’s been diagnosed with selective mutism, which means she’s only talking in certain situations,” Yilmaz says. Her daughter has shown other signs of severe separation anxiety: “When I’ve had to leave in the morning for temp work, she’s stood at the door and screamed, ‘Mummy, please don’t leave!’ ”
Thousands of families in Britain are grappling with similar circumstances, following the 2012 passage of a migration law that sets strict income requirements for those hoping to sponsor a spouse or dependent who does not come from a European Union member state.
With Britain poised to exit the EU in 2019, these stringent regulations may soon apply to millions more families – compounding a deep sense of anxiety and uncertainty among EU citizens who’ve settled here about their family future.
The Conservative government has pledged to end free movement of people from Europe following Brexit, and to roll out immigration rules currently only applicable to non-EU citizens across the board. Such a change would sharply restrict the right of Europeans not yet residing in Britain to join family members here.
Income litmus tests
Britain’s family immigration rules are among the world’s most financially stringent. Passed as part of the ruling Conservative Party’s policy to sharply curb migration, the regulation currently requires that a British citizen or European resident earn at least £18,600 per year (about $24,400) to apply for a spousal residency permit.
That threshold is roughly 25 percent higher than the annual minimum wage for a full time British worker. Critics say that in addition to inflicting undue hardship and emotional stress on children and families, the policy is overtly classist.
“The system is designed to discourage people with low incomes from applying,” says Chai Patel, legal and policy director at the Joint Council for the Welfare of Immigrants (JCWI). He says it disproportionately affects women and minorities, “who tend to earn lower wages.”
Yilmaz is among those Britons who have been unable to find a job that pays enough. A former food technology teacher, she says cuts in the education sector have made it even harder to find work that meets the salary threshold.
While the policy has faced harsh criticism, a spokesperson for the UK Home Office says the rules are lawful and necessary. “It prevents burdens on the taxpayer arising once family migrants have settled in the UK and thereby gain full access to the welfare system.” The spokesperson points to a February Supreme Court decision that largely upheld the policy after several families challenged it.
While thousands in Britain have been living with the realities of UK family migration policies, European residents here are increasingly anxious that Brexit may erode their own rights in this arena.
Since Britain narrowly voted to leave the EU in a referendum last year, some three million European nationals and their post-Brexit rights have become the subject of protracted negotiations in Brussels. Those negotiations have stalled.
Prime Minister Theresa May has assured EU nationals settled in Britain for at least five years that they’ll be allowed to stay indefinitely. But she and her government have also vowed to end freedom of movement from Europe to Britain and are proposing to align family migration rights for EU citizens not yet in the UK with the rules already applied to non-European nationals.
Justine Stefanelli, interim deputy director at the Bingham Centre for the Rule of Law at the British Institute of International and Comparative Law, believes it’s “highly likely” that EU family members attempting to enter the UK after Brexit will be subjected to strict new visa requirements.
She points to a government policy paper on EU family rights released in July that proposed such changes. However, she cautions, the same paper also says “other arrangements” might be made as part of Brexit negotiations. “Everything at this time is rather hypothetical,” she says.
Liza Lovdahl Gormsen, a lawyer who has addressed the House of Commons on European citizens’ rights post-Brexit, stresses that Britain is also seeking a good deal for its own nationals scattered across Europe.
That could have considerable impact on any agreement, she says. Since the EU refuses to begin trade talks before hammering out a firm deal on the rights of Europeans in Britain, the most pragmatic choice for British negotiators might be to uphold most of the rights those residents currently enjoy.
But until the complex exit negotiations currently underway between Britain and the EU yield a firm deal, it’s impossible to ascertain how family migration rights might change.
Living in limbo
The murkiness of Brexit has thrown EU residents into a state of limbo: one that is both emotionally wrenching and legally thorny.
“You're putting people in a position where they can’t plan their lives. They don’t know what their rights will be going forward,” says Georgiana Turculet, researcher for INTEGRIM, a project focused on European migration issues.
Ms. Stefanelli says the ongoing legal uncertainty around Europeans’ rights in Britain breaches the rule of law principle: the notion that laws should be as accessible, clear, and predictably applied as possible.
“Legally, it makes it difficult not just for the people who have to live their lives according to these rules, but also for a lawyer to give adequate advice to their client,” she points out.
Katya Ivanova, a researcher in European politics who recently taught at the London School of Economics and has written on European family rights post-Brexit with Ms. Turculet, says profound uncertainty and anxiety are already prompting Europeans to leave Britain.
According to the UK Office of National Statistics, 2017 has seen a steep rise in EU nationals leaving the United Kingdom, with some 122,000 departures from January to August.
Ms. Ivanova predicts a sharp uptick in European departures from Britain “over the next two to five years.”
For some European residents pondering whether to remain in Britain, the prospect that they might be unable to care for elderly parents is a serious worry.
Current policies require proof that a non-European dependent parent cannot get adequate care in his or her home country. And in September, The Guardian published leaked documents revealing government plans to restrict the definition of “family members” to dependent children and spouses for EU migrants, post-Brexit.
“Both my partner and I are EU citizens with elderly parents, [and] we worry about how we’ll care for them,” says Mike Mac Sheanlaoich, an Irish researcher in biotechnology who lives near Gateshead in northeastern England.
“It appears that if we want to stay in the UK, we may have to force the burden of care onto our respective brothers and extended family, which seems deeply unfair.”