The court judgement on loving an immigrant

Nestled away in the court of appeal today is a case which will decide whether British citizens are allowed to live with the person they love.

Having even reached this point is, of course, a moral disaster. But this is where we are.

Last summer Theresa May lost a crucial case concerning her requirements for UK citizens marrying someone from outside the EU.

Under rules put in place by the home secretary, only Brits earning £18,600 can bring their loved ones to the UK. It rises to £22,400 if you have a child and an additional £2,400 for each further child. Under the system, 40% of the British working population are prevented from bringing a foreign spouse to live with them.

I have spoken to people whose spouse earns many multiples of that amount – but it doesn't count. The current or expected spousal income is not taken into consideration. I have met people who have family members or friends willing to demonstrate to the state that they are prepared to support the couple – a system used in other visa applications to prove the applicant will not have to rely on public funds. That doesn't count either.

Only people with £62,500 savings for six months are exempt from the rule.

It is an unreported ethical catastrophe, a savage policy which tears apart British families and forces children to grow up without their mother or father. It takes a particular kind of moral cowardice to ask someone to choose between their country and the person they love. That apparently is the kind of moral cowardice Britain has adopted.

In July, Mr Justice Blake in the high court branded the rule "disproportionate and unjustified" in the case of MM & Ors v Secretary of State for the Home Department.

He rejected the argument that the rules were discriminatory in nature or that their absence of concern for the effect on children constituted illegality. He did not strike them down as generally unlawful – the judgement was only about the case at hand. He also did not find that the very concept of setting a minimum income benchmark was unlawful.

But he took umbrage at the way the Home Office had ignored Migration Advisory Committee income benchmarks of £13,400 as the level at which people are unlikely to have to rely on state funds. This is a level closer to the earnings of someone working 40 hours a week on minimum wage.

Mr Justice Blake found that British citizens have "a fundamental right of constitutional significance recognised by the common law" to live in their home country. But around half the British population would be forced to leave their own country under the rules, if they are unfortunate enough to fall in love with someone from outside the EU.

The judge said:

"To set the figure significantly higher than even the £13,400 gross annual wage effectively denies young people and many thousands of low-wage earners in full time employment the ability to be joined by their non-EEA spouses from abroad unless they happen to have wealthy relatives or to have won the lottery. This frustrates the right of refugees and British citizens to live with their chosen partner and found a family unless such modest earnings could be supplemented by any reasonably substantial savings, third party support or the future earnings or the spouse seeking admission."

The judgement didn't make May's rules illegal, but they provided a ray of light for the thousands of couples desperately waiting for the right to live together.

It suggests that even if they can't satisfy the £18,600 benchmark, they may be able to secure an application if the sponsor earns above the minimum wage, or if there is reliable 'third party support', or evidence the spouse will work in the UK, or where children are affected.

While the case plays itself out, visa decisions on foreign spouses have been put on hold.

The Home Office, unusually, paused for a while as it responded to the criticism. For a short while, people suspected they might not pursue their usual tin-eared moral bankruptcy. Alas, it was not to be so. Soon enough, they appealed. The current case will see if they are successful.

The case is expected to last two days. Some of the many thousands of British families split by the rules will be demonstrating outside the court and filling the public gallery – organised by the rather brilliant campaign group Brit Cits.

The minimum benchmark rules were the point at which Britain's anti-immigrant hysteria started to radically restrict the rights and freedoms of its own citizens. It demonstrates that more than anything immigration is a civil liberties issue. And it showed dramatically how we belittle our own lives with this grim hostility to immigrants.

For the sake of Britain's better nature, we must hope the Home Office loses its appeal.