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The MM case: Long distance couples challenge the ‘anti-love law’

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Supreme Court ruling could lead to an influx of immigration

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This week, the Supreme Court will be hearing the important case of MM, a case that holds the potential to fundamentally change UK immigration law.

The case deals with a niche area of law that has niggled away at long distance couples since it was enacted in 2012: the minimum income requirement in immigration law.

Under domestic law, a UK national is only able to bring their non-European Economic Area partner into the country if they earn £18,600 a year or more. This figure steadily increases if there are dependent children involved.

Since the get-go, the minimum income requirement has come under attack from scathing critics. The average wage of a host of low paid jobs — chefs, florists, hairdressers and hospital porters, for example — fall well below the requisite minimum figure, and it has been estimated that 45% of people don’t earn that sort of money.

Others say that the rule does not take regional or gender driven wage differences into account. The percentage of women not eligible to sponsor a third country national partner is nearly twice as high as the number of men, while figures fluctuate between 30% and 51% dependent on where in the country the partner lives.

Campaigners have also been at pains to point out that it is only the UK national’s income that counts — not the foreign spouse’s, nor promised financial help from parents or other third parties. This means that if a millionaire married an English cleaner (in receipt of an average salary), then he or she wouldn’t be allowed in, regardless of the contribution his or her wealth would make to the economy.

It’s intrinsically unfair — and even the High Court wasn’t convinced that the rule stood up to scrutiny. In a judicial review challenge brought by two British nationals and a refugee, the court found that the law’s interference with citizens’ rights was “very significant”. Though stopping short of striking down the rule as unlawful in general, Mr Justice Blake commented:

The consequences are so excessive in impact as to be beyond a reasonable means of giving effect to the legitimate aim.

He gave a list of “less intrusive” ways that the financial requirement could be applied, including “reducing the minimum income required of the sponsor alone to £13,500”.

Despite this early success, in 2014 the decision was overturned in the Court of Appeal, and is now being heard by an unusually high number of justices — Lady Hale, Lord Kerr, Lord Wilson, Lord Reed, Lord Carnwath, Lord Hughes and Lord Hodge — a firm nod to the case’s importance.

This is the court’s chance to signal a thumbs down to the minimum income requirement, the question for the justices being this: is the rule a breach of Article 8 of the European Convention on Human Rights, unlawfully discriminatory and/or irrational?

Surely, the answer can only be yes. The impact on family life is undeniably detrimental.

Saira Grant, chief executive of the Joint Council for the Welfare of Immigrants, intervening in the case, explained:

An estimated 15,000 children in the UK are currently growing up without one parent as a direct result of these financial requirements. Children are being forced to grow up in ‘broken homes’ with serious consequences for their emotional and mental health.

While this is no doubt an unintended consequence of the 2012 amendment — the brainchild of the Coalition government — the rule proves so intolerable that some sneaky couples have craftily devised a way around it.

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It works like this: other European countries, like France, don’t impose an £18,600 minimum earnings requirement, so the UK national and their third country national partner can go live there. If they work in this European country for three months, then they can be considered under EU free movement law instead of national law, and can enter the UK together on this technicality. This is known as the Surinder Singh route — named after the 1992 case that gave this method a legal backing.

On first reading it looks like a dodgy legal loophole, but there’s a wealth of interesting stories from happy couples that have managed to take advantage from it.

But it doesn’t work for everyone, and the fact that around 20,000 non-European Economic Area family members enter the UK in this way is surely a signal to the government that the minimum income requirement, termed the “anti-love law” by the Refugee Council, is in need of a make-over.

It’s certainly beginning to take its toll on the loved up couples that it keeps apart.

Though the hearing isn’t yet finished, the Supreme Court has so far been told by the appellant’s barrister — Manjit Singh Gill QC from No5 Chambers — that the threshold is the highest in the world second only to Norway, a country with a high minimum wage. In relative terms, therefore, we demand the highest threshold in the world.

He told the court:

For many, £18,600 is completely unachievable. It is not like the case of the English language test where you can put in so many hours. This is effective for life, for half the British population. Parliament cannot have intended the law to be used in that way.

He described the “absurdity” of the Surinder Singh route as “quite staggering”, adding:

People being forced to leave the country and then come back. What on earth is the point of doing that?

The hearing finishes tomorrow, and we can expect to wait up to six months for a ruling. No one knows what the justices will decide, but the message from the lawyers is quite clear.

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46 Comments

Anonymous

KK comments inbound…

Anonymous

KK says…

“could lead to an influx of immigration” – how so? The rule on minimum income was only recently introduced. Abolishing the rule would take us back to how things were before. There has never been an “influx” of migrants in the past, and thus no need to fear what might happen if the Supreme Court find the rule to be unlawful.

“This means that if a millionaire married an English cleaner (in receipt of an average salary), then he or she wouldn’t be allowed in, regardless of the contribution his or her wealth would make to the economy” – Not true. A millionaire would get a Tier 1 visa without much difficulty.

Overall the article is OK, but could do with more research and less hyperbole.

LB

The Tier 1 Investor visa requires you to immediately invest 2,000,000. Plenty of millionaires would not be able to achieve this.

And, the example has merit because this article is only discussing spousal visas. “Just come in under another visa” is not an adequate response. In some cases doing so would require lying to the UKBA, which endangers your prospects for settlement. It may also force you to do things in the UK you wouldn’t want to otherwise, or to come in under a visa that’s even more prone to sudden rule changes.

Anonymous

They could also just give the spouse the savings amount and let it sit there for 6 months. This doesn’t discount the fact that: Why in the damn hell do they have to do all this in the first place?

petesomething

our mrs may who does not have children care for us now and fights for poor families , she wanted it to be £40,000 not 18600 for your spouse yes £40,000 but the lids stop her and got it down to £18600 and more for children , may be she does not like kids or families, , why should the tax payer pay for your family , , what could our mrs may say , YES got IT , they cant be a tax burden on our tax payers , truth , my wife from Ukraine cost about £2000 to get first part of visa wife and child ,would of been more if i used a solicitors , i say if you have the money use a solicitor , , why,,,, you will lose your fee government will keep your fee if you dont get your visa, , the 5 year rout , after 30 month , you have to pay more money for next part of visa , we payed about £4,000 , last part will cost us about £5000 , BUT remember the test they cost you money too, , so we got to save about £40 a week for last part of visa , but dont worry if you lose your job or go on sort time , your spouse and kids could be sent home , remember they cant be a tax burden,,, so just worry just and pray for the next 5 year and dont eat , you dont need food the court said its not against your human rights , to live in fear , yes fear, this your life for the 5 years , THE REAL TRUTH if you earn lest than £18600 a year how can you look after your family pay bills buy food , and pay for your visa and these stupid test, you cant, but our mrs may had to say some thing , to get your money , and is that right she payed over £1000 for a pair of trousers and said all woman can afford them , but now she said she cares about poor families, well she needs to understand money

Anonymous

I just wanted to follow up on your claims that it could ‘lead to an influx of immigration’ and that it is ‘a case that holds the potential to fundamentally change UK immigration law’. I highly support the destruction of these onerous, arbitrary rules, but I did not see any explication throughout the article as to how this case could lead to these lofty claims. I mean, even if this is defeated, the government could swiftly turn around and raise the fees to £2000/person/visa. They could also make permanent residency unobtainable. It was a great read, but I just wanted some clarification on these points.

Anonymous

Yes everyone, love trumps the economics of immigration.

Anonymous

I was personally affected by this policy. I had to leave the UK for a year and a half with my wife because, as a recent graduate in a recession, it was impossible to meet the financial requirements before her post-study work visa ran out.

If it was difficult for me to meet the financial requirement, it is impossible for others (ie the severely disabled). It is ridiculous to say that those with money are more deserving of respect for family life than those without. I hope the Supreme Court gives this policy the kicking it deserves.

Anonymous

oh cry me a river

Anonymous

Are you capable of empathy or are you just a sociopath?

Immigration Specialist

“This means that if a millionaire married an English cleaner (in receipt of an average salary), then he or she wouldn’t be allowed in, regardless of the contribution his or her wealth would make to the economy.”

This isn’t strictly true because the Immigration Rules allow for one to use money in an account to ‘top up’ the shortfall in any earnings. So if the cleaner is only making £10,000 per year, the remaining £8,600 can be made up by the millionaire if he/she can show that he/she had £37,500 in a bank account for 6 consecutive months, which shouldn’t be an issue for a millionaire (Visas are granted for 2.5 years generally so any shortfall has to be multiplied by 2.5 and the fist £16,000 in an account cannot be used to ‘top up’ the shortfall. So £8,600 x 2.5years + £16,000 = £37,500).

I work in immigration and I personally believe that £18,600 is too high. Given the ease with which EEA nationals can bring their partner’s to the United Kingdom when British nationals have to satisfy stricter rules, I think a change is in order.

BritCits

Agree a change is in order, but not by making it harder for EE citizens. By making it fairer for British citizens. No point us all being worse off with even the EEA regs, which have been a lifeline for so many British citizens, taken away whilst the HO through the UK rules continues to divide families.

Anonymous

Conservative spouse visa policy way too tough but EU rules “everyone has the right to a foreign spouse but not if they are living in their own country are even tougher. 44% of people can’t afford to sponsor spouse under UK rules but an either higher percentage can’t give up their home and take their children out of school to go and live in Europe

Anonymous

How can immegration be so strict?
Do you think we go and search for love .
I didnt after a broken marrage battered black and blue ..
Love was last thing i wanted .. but i met him friends for a year. Now a couple for 2 years.
Who are you to say cant come in.
But refugees do free of charge ??
I work pay taxes everything and you all prevent my life moving on.
How can they be allowed to do this..
It should be changed.
You work . Can support.
Have quality of life then if prove in proper relationship it should be granted and allowed travel.
Excessive fees break you .
Bad enough but 2000 for visa .. please see the error in the ways .
I would dearly love my partner here who i add is highly skilled but no it dont fit in here.
But live in poland etc .. welcome free

Anonymous

I see

Anonymous

I take exception to the comment of Saira Grant that children forced to grow up in broken homes are guaranteed to have emotional and mental problems. What a load of utter tosh, that in no way lends weight to her argument.

If the father or mother is forced to live elsewhere, they can of course still have a relationship with the child and play a role in its upbringing. that could be through gaining leave to enter the UK on a temporary basis, or the child spending time in the parent’s country, or communicating electronically.

If the overseas parent isn’t willing to make that effort, then it is their fault and not the fault of immigration law.

Also the number of sham marriages, sadly, justifies these sorts of rules. And a country should quite reasonably have the ability to control its own borders to the extent that it demands a base level of income. £18k really isn’t unreasonable – any less than that and you are in benefits territory.

Sorry to give a dose of reality here. I am in no way anti immigration and indeed I am very pro EU which suggests I am the opposite. However there is a lot of crap written about this particular law.

The “let them all in” mentality of claimant immigration lawyers really grates.

Anonymous

They check whether the marriage is a sham or not in other ways. How does your income determine whether or not a marriage is a sham?

Princy

You can’t say that, because my hubby has applied thrice and been refused thrice. They are purposely refusing the visas especially when they know you have family and refusing it with no right of appeal from statistics report. I really needed my husband to be here when I was due birth our two kids but that was denied us twice. So speak if you have personal experience.

Princy

And did you say communicating electronically, howbeit if you tried living it? It’s that the definition of family, living together?

broken family member

I assume your children (if indeed you have any) have not lived away from a parent and family for long periods of time, speaking from experience, it DOES have a impact on the childs behaviour, it DOES have an impact the parent that is missing everyday life, and it certainly had an impact on me, The UK citizen that was denied the right to a family life because my salary was £2000 below the threshold.

my huband missed first words, first steps, first visit to special places, priceless family moments we will never get back.

it is nothing to do with , and I quote your “let them all in” attitude, its to do with as a britsih citizen and a british tax payer WHY am I not entitled to a family life?

Anonymous

Yes I do. I’m a divorced parent who has had to go to court for fair living arrangements for my son. It doesn’t have to have an impact on the child – parents who love their children will move heaven and earth, and look at all the alternatives.

Anonymous

But you were not separated by thousands of miles. You have no idea!

Anonymous

Your negetive comments sounds like you want others to seperate and live a life like a divorcee. But let me tell you that we need a real life not virtual and we know the true meaning of relationship.

Anonymous

So please point me to the statistics which, ‘justify these sorts of rules’?

“if the father or mother is forced to live elsewhere, they can of course still have a relationship with the child and play a role in its upbringing. that could be through gaining leave to enter the UK on a temporary basis, or the child spending time in the parent’s country, or communicating electronically”

Are you honestly suggesting that this is an acceptable way to bring up a child or 2, via skype and visiting the UK on a temporary basis and sending them overseas once ot twice a year. How about if the child has special needs?

“If the overseas parent isn’t willing to make that effort, then it is their fault and not the fault of immigration law”.

Do you not think that the lengths some of these people are going to is in fact beyond what most parents actually do on a day to day basis?

I’m sorry to give you a dose of reality, you have absolutely no idea or understanding about what you are talking about.

Adem P

If the UK know you have family in the UK, they are most likely to refuse a visit visa on the grounds that you will become an overstayer…. (Speaking on experience)

Anonymous

Conservative spouse visa policy way too tough but EU rules “everyone has the right to a foreign spouse but not if they are living in their own country are even tougher. 44% of people can’t afford to sponsor spouse under UK rules but an either higher percentage can’t give up their home and take their children out of school to go and live in Europe

Anonymous

If you have a British spouse in most cases this disqualifies you from coming to the UK on a visitor visa. And the price of airfares make it difficult to see children living abroad. What saira grant says is completely true I didn’t see my daughter for 6 months because she couldn’t get a spouse visa and I couldn’t go to her country as I had to save up to meet the financial threshold and my daughter DID develop behavioural problems. You have no idea but Saira does as she has seen the office of the children’s commissioners report on y he effects of these rules. Also foreign spouses can cannot claim benefit even if they have a spouse visa !

Anonymous

People on spouse visa can not claim benefit. People with British spouse usually can cannot get visitor visa. I couldn’t see my daughter for 6 months because of the spouse visa rules. Daughter developed behavioural problems. Please check study on effects of these rules by Office of Children’s Commission

Anonymous

It’s not that spouse cannot get a visitor visa as i got it but i had to apply it twice to receive it. That shows how difficult is it.

Anonymous

People on a spouse visa are not entitled to any benefit whatever their earnings.
Saira Grants comment is based on extensive research by the Office of the Children’s Commission of the effects of the visa rules on children.
My own daughter 3 year old daughter developed behavioural problems after we couldn’t see each other. Most foreign spouses are not allowed a visitor visa to the UK because the government does not trust them to return, as a result of these brutal spouse visa rules.

Anonymous

Those who are going through the immigration process aren’t even allowed a visitors visa so how can they fully be involved with upbringing??

Anonymous

You’re pretention is incredible. You are obviously a person who has not been through this. I’d make the assumption that you think you know it all. I’d like to give you a dose of reality to; you dont. Just because you have an opinion, doesn’t make it a good one.

I’d ask you if you even make enough to do this yourself but you will likely lie to protect your ego.

BritCits

Shame. Had the potential to be a decent article, but you spoilt it with “sneaky couples have craftily devised a way around it” and “dodgy legal loophole”.

The Surinder Singh route is not a loophole – it’s been around for over 20 years, but when the HO shuts a door, families will look for alternatives for family reunification purposes. It’s not something that needs to be closed, nor is it an unintended consequence of policy. Given this, what is your definition of loophole? The old UKBA website clearly stated that it did not matter if a British citizen moved to another member state simply to return to the UK using this route. They removed this wording likely in the interest of not wanting to be transparent, but the Metock case law remains and nothing in the Directive has changed either.

These are not sneaky couples who are engaging in any sort of crafting – that’s a seriously insulting comment to make towards families who would prefer to pay UK visa application fees but are faced with the barriers put up by the Home Office at every step. Why wasn’t Surinder Singh an issue before 2012? Heck I bet you hadn’t even heard of it until a couple of years ago at the earliest. Even then all the advantages of SS route over the UK rules remained by way of no visa fees etc but ppl still applied under the UK rules, because they were reasonable.

I question your claim about the ‘infux’ if the SC rules on the side of families – evidence please or just a flashy headline to appease DM type of readers ?

The rules are nonsensical when even an asset rich pensioner with no debt or mortgage is told by the HO to sell his home to show cash savings of over £60,000 if they want to sponsor a foreign spouse, who would have no recourse to public funds anyway.

While a millionaire foreign spouse may find it easier to come in, not too many ppl, even where reasonably well off have a lot of spare cash sitting in a bank account earning piddly interest…not exactly a wise investment!

You may – though probably aren’t – aware that the HO once again has proposed visa fees to rise, with families picked on yet again as family visa fees are due to rise by 25%. For spouse visas, this increase applies for entry clearance, at the 30 month period, again at the 5 year period, with IHS and English language tests to pay for at every step. Women are having abortions because of these rules and there have even been media reports of a suicide or two. Children are growing up without a parent.

Skype isnt the means by which a family should be forced to communicate nor should British children not be able to live in their country…as Lady Hale said, this is their ‘fundamental right’.

These aren’t sneaky couples, they’re desperate and often, parents to British children.

Some respect please.

Martin Jones

Thank God for your support…..the anti immigration rhetoric in this country has reached such incredible levels …..we are talking about real people here. My mother always taught me to place myself in the other person’s shoes before making a comment or passing a definitive comment. It’s easy. Try it. See whether you would still have the same opinion. People are suffering such stress from seeing their hopes on this case coinciding with the government doing its best to close their remaining hope of wanting nothing more than family life in their own god damn country. This is just a bloody game to politicians and lawyers…a game of numbers as a sop to the most loud mouthed and small minded. Votes. Nothing more. And it has been going on for FOUR years now. If they are serious about this being to stop ‘immigrants’ being here at the taxpayers expense give them a chance to earn together to clear any arbitary benefits threshold- any non EU spouse already has ‘no recourse to public funds’ for 6 years (the length of minimum time taken to secure a passport). As for this being a measure to stop “sham” marriages….for god’s sake. How many genuine marriages last 6 years? I read one report from a local newspaper journalist who claimed the new EU agreement would stop people (with a picture of a hindu couple) sunning it up in a South French villa just so they could find a quicker route to UK settlement !!! FFS. As if anybody rich enough to do this would need to bother. The people trying to unite their families in the EU are desperate working class people living in meagre situations …they have often given up long term jobs in the UK (which don’t reach the minimum income, and less likely to outside of London) just so they can meet the COL requirements of the UK’s already illegal interpretation of EU law. The whole thing is a sickening smoke and mirrors attempt to appease the bigoted, ill-educated and downright prejudice – the numbers of which are on the rise. They feel emboldened by stories like this of the establishment apparently vindicating their ignorance.

Martin Jones

……oh and of course the other consequence of denying the children their father is a complete antithesis to the main defence of the HO that it is driven by its need to protect the taxpayer’s expense. By its own deliberate policy they are making the resulting default single parent families MORE likely to need recourse to claim benefits/state support.

The whole thing is so transparent to its true intent – if only you look (and not that closely either)

Anonymous

This article. Is written by somone. Who is not in this situation. No one will claim. Benefits If they come in to the country. Which is a good thing.
I and my partner are traveling business. But cannot come in to my own country because of there crazy un realist price tag. Only for the rich. Yet again. Money talks.
Brittons Loss. Because there Descions. Come from Fear bassed.

MP

I worked abroad for 8 years, courted my wife for 2 years before we married and had a child. We are now 5 years together and 3 years married with a beautiful 15 month old daughter. The reason i chose to take my family to an EU state is purely because of the draconian UK immigration rules. Why should i be forced to return to UK on my own and be away from my family for (what would be at best) 6-9 mths. Missing out on the father /daughter bonding in her baby/toddler months. This is a disgrace, this is an affront to my human rights and the rights of my family, we should be together.

We have now been living in a ‘host’ member state which is neither my wife’s nor my home country. Apart from financial cost, the stress and emotional rollercoaster seems relentless. UK government is targeting the wrong people to ‘trim’ immigration numbers for political point scoring without having thought this through. Shame on you.

Anonymous

My partner has only seen our 15 month old daughter twice since birth due to the immigration rules as i have another child from a previous relationship and i cant be in two places at once. I totally agree with your comment and thank you for voicing it so well.

Anonymous

Absolutely disgusting. I am British just like you. I want to live in Britain just like you. What is skin different between us that you have rights to be here and I don’t?
https://petition.parliament.uk/petitions/121216

Anonymous

My husband is British, and I American. We met each other 11 years ago, long before these rules took place. We took things slowly. He wanted to finish his higher education and earned his degree. He’s a smart and capable man and I’m so proud of him. Then the economy crashed, there were no jobs for a fresh graduate with his skill-set in his area. The North’s economy has flatlined. People with Master’s degrees unable to find work, or being forced into low level work or facing sanctions. I’ve heard of so many stories like this. The immigration rules changed disturbingly. Years went by, until he got lucky and landed a very poor paying job with long hours. It had nothing to do with his skill-set, but he worked for years trying to save for us. It would never be enough. He neither made enough for the requirement and would continue to never make enough in the future. After so much time apart we made the decision., just like many other Brits we know. He would leave the country he loved behind, his friends, his elderly parents, his siblings behind! Applying to immigrate for a family-based visa to America is a difficult but fairly straightforward process, which does not penalize a person financially and gives the sponsor plenty of options. Within a year, my husband is with me and never to be separated again. For British with non-EEA American spouses, the sad fact is your government doesn’t want you anymore, and they will continue to fail you in every way. Take heart and be strong. It was not an easy decision for us. America has welcomed him, it is not his homeland.. but at least he has his wife. To the UK though, they have lost just another faceless taxpayer and low level workerbot, acceptable losses to Tories. It’s the price of love.

katie

What also sickens me is the way this Government/Cameron almost dismisses anyone who earns below the £18,600 as being of no value to this Country. I am a full time (40hrs) Teaching Assistant. I earn £15,000 p/a. From what I understand I need £25,000 in savings to make up the income shortfall. The children I work with value me deeply. Oh! AND Mr Cameron, I am one of your much vaunted (and here’s that ubiquitous vile phrase you like to constantly ram down our throats) ‘hardworking people’. Why do you treat me with such disdain?

Graham Brock

The guy who wrote this is an Asshole

Anonymous

Immigration rules are quintessentially public policy law of a sort that should made by governments, not by courts. Many countries have differently constructed but equally or more onerous immigration requirements.

If you don’t like the law, vote against the government. If you do, and the government remains, tough – that’s how democracies work.

Some of what’s been said on this thread – leaving aside the foolish insults – are human stories to which most will be sympathetic. But they are ultimately selfish: I want my happiness so ignore the legislation, ignore Parliament.

Anonymous

No, other countries do not. In the article (if you even bothered to read it), it is stated that the only other country to have a higher requirement is Norway, which has an extremely high average wage anyway. Therefore in relative terms, the UK’s requirement is the highest in the world. Other countries, such as Germany and Portugal for example, have no income requirement for their citizens at all. In Germany’s case it is explicitly stated in the constitution that the state has no right to interfere in its citizens’ right to family life.

What you are arguing for here is a dictatorship of the majority whereby the government can infringe the basic rights of its citizens to a family life just because it has a slender majority in parliament. What you suggest is not in fact how democracy works; the opposition doesn’t just shut up for 5 years after each general election, and just because legislation has been passed by parliament does not mean that it should be examined or debated afterwards, when its effects (especially as in this case) have proven to be delitrious.

The people sharing their stories on here are not being selfish, they are asking that they be able to enjoy the fundamental right to a family life in the country of their birth, as enshrined by article 8 of the ECHR.

petesomething

we all dont think the same , but it does not matter what we think , mrs may wants your money , the rich bosses can bring people here to make money for them and the government , i am English why cant i bring my wife here for love , sorry i can if i can make money for the government, dont blame people from the eu or British people who find love out side England , we are slaves to the rich and government , the truth you are nothing we are nothing , but mrs may want your vote , she say any thing ,

Bar Warrior

Errrmmm the rules are there to stop scam marriages and fake sponsorships. Its more likely the poor people and social misfits, who cant get a wife or husband through normal channels.

So 52 year old Donna ‘marries’ the 22 year old Turkish Stud-waiter love of her life after a week in Izmir, and starts the immigration battle. Once he’s been here for 3 years and obtains right of abode – Bam! one day she wakes up and Mustafa is nowhere to be found. He’s hit the discos with the young dollies and now in a cosy flat using Donna’s divorce settlement money.

Think this doesnt happen? Yes it does, hundreds of times every month.

Keep the rules, and that way we keep Gimmigrants and economic chancers out of the UK.

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