A British-American family hit by costs of £45,000 and split across the Atlantic have accused the Home Office of “inhumanity” and say they may be forced to return to the US after the government refused to reverse a visa decision that lawyers say is based on a misinterpretation of its own rules.
The Home Office had said it was “urgently reviewing” the Westerbergs’ application after the Guardian highlighted the plight of the family, a US man with an English wife and two children who are British citizens.
The husband, Rajesh Westerberg, has offers of full-time employment with both the Welsh National Opera and Factory Settings, a design company that counts all the major British museums, the National Theatre and Royal Opera House among its clients.
Within 24 hours of starting its review, however, the Home Office concluded that Westerberg’s application for further to leave to remain was correctly refused. “Such applications cannot be made by those visiting the UK,” it said.
“The immigration rules set by parliament do not allow individuals to switch from visitor status to obtain leave to remain in the UK on a route which would allow permanent settlement,” the Home Office spokesperson said. But this, lawyers for the family have said, is wrong.
Westerberg had indefinite leave to remain (ILR) in the UK for eight years from 2004. It lapsed in 2012 because he remained outside the UK for 28 days more than the two-year return period mandated by the ILR law. When he visited the UK this summer on a tourist visa with his family, however, he received an offer of work.
The family had already been considering moving to the UK to care for Rajesh’s wife, Nicola Percy’s disabled and ageing parents. Lawyers advised the family that the job offer qualified Rajesh to apply for further leave to remain – a visa status that can only be applied for from inside the UK – because his partner and children were British citizens. The family rushed to meet the additional conditions, signing a 12-month lease on a home and registering the children at a local school.
Westerberg’s application, however, was refused twice. The Home Office later admitted it was wrong to ignore the exemption allowing visa applications to be made from inside the UK if your children are British citizens but it nevertheless refused to reverse its decision.
The family have already been hit by costs of around £45,000 in legal fees and lost earnings – Westerberg is not allowed to work in the UK. Last week, he returned to the US. “I simply cannot afford to stay in the UK or our family will be destitute with no recourse to public funds,” he said.
The only option now open to the family is for Nicola to sponsor her husband for a spousal visa. This means Nicola must find a job paying at least £18,600 while caring full-time for her two children as a single mum and working at whatever low-paid job she can get in the meantime, to keep the family afloat. She will be unable to care for her ageing parents, which is the reason the family wanted to move back to the UK in the first place. The family will be apart for eight to nine months even if this new application runs smoothly.
Nicola, however, said she could not cope much longer. “Separating a loving father and husband from his English family is disgusting. He lived and worked here for 11 years previously and paid tax and national insurance. He could have applied for a UK passport in 2009 but we did not.
“We gave up everything we had to relocate to the UK,” she added. “We gave up our home, our jobs and our kids’ places at schools. We sold most of our possessions. What might have been routine administration and paperwork for the Home Office was our life.
“Removing the primary breadwinner of our family, from our family is inhuman,” she added. “Making us apply for a spousal visa when we are barely making two ends meet and will find it incredibly difficult to achieve criteria, makes my blood boil. All we want to do is live and work here, and help my ageing parents and allow my children to grow up in the country they were born in.
“Far from returning to the bosom and fold of my homeland I feel I am being treated like a criminal,” she said. “I am disgusted by the treatment we have received by the UK government. Are we going to return to America? To what would I now be returning? We don’t have a home to go back to. Do I want to rip my daughter out of the secondary school she is settling into? No. Do I want to remove my son who is just getting the hang of his new primary school after being in a ruptured state for the first month? No.
“How will my husband be returned to us? I don’t know, but I spend most nights awake trying to figure it out,” she said. “We are at our wits’ ends. I am tempted every day to leave the UK. It may become a necessity. We are hanging in for now, but by a thread as we try and figure out a plan.”
