Supreme Court could knock down Tory anti-love rule

The fate of thousands of children forced to live apart from their parents is about to be decided by the Supreme Court. It will hear today from couples separated by an income benchmark on spousal visas. If it decides in their favour, tens of thousands of Brits on low incomes could win the right to live in their home country with their loved ones.

This is how the system works: with little warning the Coalition government brought in an £18,600 income benchmark for spousal visas. If a Brit married someone from outside the European Economic Area (EEA), they needed to show six months of that level of income to be able to bring them over to live with them. The benchmark was £22,400 if they had a child and an additional £2,400 for each subsequent child.

The supposed purpose of the rule is to stop these spouses claiming benefits or generally demanding cash from the Hard Working British TaxpayerTM. But people on spousal visas have no recourse to public funds anyway. And the system is despairingly arbitrary. You can't, for instance, include the spouses' income. So if a millionaire marries a junior English nurse, he won’t be allowed in, despite the fact his presence would contribute considerable sums to the economy. Only the junior nurse's salary counts.

You also can't include third-party support, such a promise from parents or other family that they'll offer help if the visa-holder runs into financial trouble. You can't include property either, so retired people are forced to sell their property to satisfy these bizarre Home Office demands.

Anytime people complain about the policy, the Home Office replies that "family life must not be established here at the taxpayer’s expense", but the restrictions go well beyond that. What the law means is that 43% of the British population is banned from living in their own country with the person they love, if they happen to be from outside Europe. As with many Tory policies, it’s people in the north, the young, ethnic minorities and women who are particularly badly affected.

It didn't have to be this way. The Home Office, as it was advised by experts, could have set the income benchmark at the level of a 40-hour working week on the minimum wage – thereby allowing anyone to bring over their spouse if they were prepared to work. It could have allowed savings to make up for a shortfall in earnings, and included the spouses' income or support from third parties. And that's what the appellants are demanding: recognition that the system is so demanding, so inflexible and so arbitrary that it contravenes the right to family life.

The high court accepted this argument, saying the rules presented "a disproportionate interference with a genuine spousal relationship". The court of appeal didn't, although it said the rules constituted "a total ban on the entry of non-EEA partners where the UK partner cannot reach the required minimum" and acknowledged "this ban could be life-long". Now the Supreme Court has an opportunity to strike it down.

The Children's Commissioner and the Joint Council for the Welfare of Immigrants (JCWI) estimated that "at least 15,000 children have been negatively affected". These children often call their parents 'Skype-mummy' or 'Skype daddy'. Researchers reported "stress, anxiety and difficulties for the children and their families." It's high time this cold-hearted policy was discarded, before it can do any more damage to children or their parents.