When Michael Engel told his football teammates it might be his last Christmas in the country, they were "gobsmacked".
"I told them I'm facing deportation and they were mortified. People offered me money, I got a message on Facebook saying, 'would a grand help?'"
Engel is married to a English woman, Natalie Stafford. The two have raised their 15-month-old daughter Nyana Rose in Cornwall since they moved from South Africa and run a successful business together.
Cape Town native Engel is a qualified yacht engineer but has waited tables in the family's hometown of Polzeath while he waited in immigration limbo. The couple have just lost their latest appeal for Engel to stay in the country of his wife and daughter's birth.
Stafford was pregnant when they first applied for Engel to remain, and her income did not meet the £18,600 threshold to bring a spouse into the country. Now they have been denied again, because their fledgling interior design business made a mere £19,786, which is still considered a "minimal" income.
In July 2012, controversial new requirements were introduced for UK spouse visas in an appendix to the Immigration Rules, which require the British spouse to have available funds equivalent to a minimum gross annual income of £18,600. The threshold means around 47% of British people do not earn enough to bring a foreign spouse into the country, no matter the spouse's credentials. The rule, the government says, is to prevent uneducated, unqualified spouses coming to the UK and becoming dependent on the public purse.
During the 2012 consultation, the government estimated the income threshold would affect over 17,000 families each year. Migrant Rights Network (MRW), which is helping bring a case against the government, say the rules are useless. "Spouses were always barred from claiming benefits straight away anyway," MRW's Jan Brulc told HuffPost UK.
"They have a stamp that says ‘no recourse to public funds’ in their passport. The only thing that could be claimed is say, child benefit, in-work benefits, for a part-British child. It doesn’t save the taxpayer any money.
"It can end up costing taxpayers more, because the single parent here might not be able to go to work because of childcare. So they tend to claim more in benefits, than if they had someone to share the burden with. It puts people in a much more difficult situation financially."
Engel and Stafford have two weeks to appeal, and if they decide not to, Engel could be deported by January 7th. Stafford will follow him to South Africa, if that is the decision they come to. "It’s been a terrible run-up to Christmas, we have had to pack up our house in Cornwall, leave to come back to see Natalie’s parents in the Yorkshire," Engel said. "They are distraught. We don’t know how long we’ll be gone for.
"Obviously immigration is a big topic, but people just don’t realise when it affects someone close to them. People are mortified. They say, ‘you’re married, you’ve got a child,’ but somehow it doesn’t matter."
Stafford even started a Change.org petition, now signed by nearly 11,000 people, asking the government not to deport her husband. "In essence the UK government seems to want to wipe their hands of us and force me to make a decision no mother or wife should ever have to make: Do I allow myself to get forced out of my own country, put aside the welfare of my child and all the reasons we came back to the UK in the first place, forget about the ‘links’ my daughter has made with her grandparents, great grandparents, aunties, uncles and family friends, and head back to South Africa where we now have no home, no jobs and no family support unit?" she wrote on the petition.
"Or do I stay, in effect, allowing my own government to make me a ‘married single mum’ and denying my husband the right to be a part of my daughter’s upbringing? It’s an impossible question to answer."
The judge said that Stafford and Engel had no "automatic" right to a family life in the United Kingdom, and that the UK “should not be expected to have to financially support the appellant in the event of him not obtaining work”. The judge also argued that although the couple's daughter was born in Britain, because she is so young she "will not yet have developed a sense of community or of the world around her outside of her immediate family unit".
"The Appellant’s daughter is currently under one year old and therefore currently although being a British citizen and entitled to live in the UK, would not yet have formed links to the British culture," the refusal read.
More than 300 miles away in Derbyshire, Sarah Joy Mason's income is also deemed too minimal for her American husband Brent Smith to join her in the UK. She works for an autism charity, helping adults with the condition in a day centre. But she may have to abandon that worthy career path, in favour of a job that pays more to be able to be with the man she loves. A man who runs an international marketing agency, who plans to set up in Britain, and who currently earns more than double her salary.
"My sector is low-paid, I am working full-time in this country, and it’s not enough, apparently," she said, "that is the most frustrating thing."
"This law penalises public sector workers," Brulc said. "For instance, some care workers and those employed in the NHS will be earning less than £18,600.
"The minimum wage for a full-time worker is about £13,800, so over £5,000 less than the income requirement, about 47% of all working Brits, don’t earn enough. For women, it is even more difficult because of the pay gap.
"This is not just a problem in the immigration rules, it raises questions about the kind of society we want to be - one that respects the right of British citizens to live with their family or one that deems some too poor to have equal rights?"
Mason and Smith were dreading being separated for Christmas because of the demands of Mason's job, the day centre cannot close for the holidays. "We want to be together at Christmas, it’s really important," she said. Smith is currently back home in Kansas City, having been forced to leave the UK in November.
Smith said he considered their case particularly harsh because of the kind of work his wife does. "She has worked a number of jobs over the years helping those suffering with mental health, and is currently serving at an educational centre for adults with autism," he wrote in a thundering blog post.
"The thing is, something happens when you work these kinds of jobs, they simply do not pay as well. Sarah is basically being disciplined for serving the vulnerable community at a below-market wage. The same vulnerable people that the UK government struggles to support in the first place."
WHAT ARE THE FACTS?
- From July 2012 only British citizens with a salary of at least £18,600 a year can sponsor a non-European spouse's visa
- They must have been earning over the threshold for at least the past six months
- This minimum income requirement rises to £22,400 for families with a child
- There is a further £2,400 required for each further child
- The minimum wage in the UK is an annual salary of £13,800 a year
- Any earnings or potential earnings for a spouse cannot be taken into account
- Couples may also be successful if they have more than £62,000 in savings
- 47% of Brits do not qualify to bring a spouse to Britain under these rules, rising to 61% of women
- The High Court said the threshold was too high, Mr Justice Blake calling the law "onerous... unjustified"
- But the Court of Appeal ruled in the government's favour this spring, and families are now challenging the law at the Supreme Court
Engel said the problems were completely unanticipated. The pair met when Stafford worked as an aerialist and a dancer for Celebrity Cruise-lines, where Engel was a barman. "We had four great years together in South Africa. But when Nyana was born, Natalie’s first child, she wanted to be near her parents, understandably. We came here with the intention to go back to South Africa eventually, where we had a house and a good life. But my wife decided she didn’t want our daughter to grow up in Cape Town, with a high crime rate, and with electric fences in a gated complex."
Applying for leave to remain set off a chain of issues. Suddenly, Engel found himself unable to work or drive. After their initial application was denied, Engel began making furniture from reclaimed wood and selling it on eBay, along with his wife's paintings, and it became a fledgling business, with furniture in four local shops and an employee on the payroll. It put them over the earnings threshold, but a judge ruled that, now they have a child, it was not enough.
"It is just crazy. If my wife was from the EU, but not British, we would not have this problem. I wouldn’t need a visa," he points out.
Like Engel and Stafford, Mason said she completely underestimated the complexities of the law. She and her husband met volunteering Australia in 2009, and pursued a cross-continent relationship when they both moved back to their respective home countries.
The couple considered applying for a green card for Mason to live in the US, but her job and training is more specific to the UK, where as Smith can work internationally. "I couldn’t work, I’d be very cut off, and getting a green card can take a minimum of a year," she said, resigned.
"And the thing is that his job is flexible, he can do it from here or the US, so it makes sense for him to come here, and pay taxes here. Which is the irony. Now, I have to get the extra income, applying for extra work and new jobs. I never imagined that we would have to do this. We thought, once we’re married, we can be together."
Mason has been blitzing through job applications but must wait another six months even if she manages to earn the extra amount.
Like Engel, Mason said friends could not believe the problems they were having. "I knew there was an immigration problem in this country, but I had no idea once you’re married you still have to be separated.
"Other people are stunned by it. They think because he’s American, he should be fine, and that was my perception, quite honestly. The countries have a good relationship.
"It is very frustrating, though I understand in this country there needs to be some sort of threshold or rules because the system can get abused. But they don’t show discretion and look at each case individually. My husband has a job already, never claimed a benefit in his life. We’ve always worked, we’ve volunteered. We couldn't have done any more."
Several families who are challenging the threshold are currently waiting on a date for the Supreme Court to rule on the law, which could be mid-2015. "People are in limbo right now and they can’t challenge the threshold," Brulc said. "The High Court looked at it much more holistically, considered regional disparity, the affect on women, the Court of Appeal did not.
"We are calling for an emergency review of the rules. The minimum wage is there for a reason and everyone who falls through that gap of earning below £18,600 should be able to enjoy their right to family life in the UK. There shouldn’t be a choice between leaving the country or not living with your spouse."
The Home Office says the policy is aimed at controlling mass immigration "which makes it difficult to maintain social cohesion, puts pressure on our public services and forces down wages for people on low incomes".
"We are building a system that is fair to British citizens and legitimate migrants, that is tough on those who abuse the system or flout the law, and that ensures people come to the UK for the right reasons - to work hard and contribute to our economy and society," a spokeswoman said.
"This is why we revised the family rules to make sure those coming to the UK to join their spouse or partner will not become a burden on the taxpayer."
Mason has had one piece of good news in time for Christmas. Her boss approved annual leave, usually refused because of the Christmas demands on the service, and she will fly out to Kansas to be with her husband, taking a huge financial hit. "I know we have to keep fighting," she said. "The other alternative is to give up. And we won't give up."
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WHEN MY WIFE COMES OVER, MY SON SAYS 'THANKS FOR COMING TO SEE ME, MUMMY'
Guy and Stacey Bailey, with son Vincent
British-born Guy Bailey has been forced to be a single dad to his seven-year-old son Vincent, while his American wife remains in the States, despite having lived in the UK together for more than three years
The Baileys met on match.com and had a long-distance relationship, marrying in the UK in 2006 and making a home in Bicester, with son Vincent arriving in 2007. Two years later, the family moved to Atlanta, but decided to come back to the UK this year because both prefer the British education system.
But Stacey cannot come back to the UK with them, she must wait for Guy to have been earning for six months, in order to prove he can support her.
“When I met Stacey, she was an accounts controller and was earning six figures and has a degree - the implication that she'll go on benefits and watch Jeremy Kyle is offensive as it is inaccurate," Bailey says.
"She's my wife and best friend - when anything interesting or funny happens, she's the first person I want to tell. We just miss being around each other at home, spending time in the house as a family."
"The US is a great country if you've got the money for private health care, education, etc. I want to be near my family where I grew up so that our son can have the sort of childhood I had in the UK. Stacey and I both want him to have a British education.
"I couldn't understand how there was no leeway, how it didn't matter that my wife had lived with me here for three years, that her son was born here, that we had support here and people to vouch for us, etc. On realising the full extent of the new rules, I moved to the UK with my son, leaving Stacey behind, so that Vincent could start school and I could work for the required amount of time before Stacey can join us.
"When Stacey came over to visit last, Vincent said, “thanks for coming to see me from America, mum”, as if seeing his mum is now an extraordinary thing instead of normality. When she left, we told him that mummy has to go over back to America to sort out the rest of your toys when she comes back for good.
"It’s especially hard for Stacey – Skype is great but it can only go so far. The emotional anxiety has a cumulative drip, drip effect. It’s the little things she misses out on, bringing home artwork from school, learning to write. And the time difference is difficult so we can’t always catch each other at the right time."
"This is enforced separation from my life partner. While I’ve been in the UK, I’ve effectively been a single parent."