Supreme Court: income threshold requirement ‘lawful in principle’

1 March 2017

In late February 2017, the Supreme Court ruled that a controversial Home Office policy was ‘lawful in principle’. The policy, which requires households to reach an income threshold of £18,600 per annum before spouses or partners from outside the European Economic Area are granted a UK settlement partner visa, fiancee visa or a spouse visa, has brought widespread protest and condemnation. However, while critical of the government’s implementation and general handling of the policy, Supreme Court judges ultimately elected to uphold it. Nonetheless, they expressed criticism for the government’s dereliction of duty to children affected by the policy.

Currently, thousands of families are separated by national borders, as the minimum income threshold makes it impossible for many non-British partners to enter the country. This, argue the families affected, violates their human right to a family life. According to the Home Office, the reasoning behind the financial requirement is to lessen the burden on the British taxpayer. By ensuring that families can support themselves before any UK settlement visas under the partner route are granted, the Home Office believes that they are preventing these families from relying upon the welfare state, and thus addressing concerns within Britain about the impact of immigration on the benefits system. For couples with no children under the age of 18, the minimum income requirement is £18,600 per annum. If the sponsoring British citizen and their foreign partner or spouse have a child of non-British citizenship, that rises to £22,400. An additional £2,400 is added for any subsequent children. As is stands, the policy does not apply to partners or spouses within the European Economic Area – but this may alter, pending Brexit negotiations.

Prior to the Supreme Court ruling, the financial requirements did not take into account the income of the non-British partner unless they were physically in the UK with permission to work at the time of application. Nor did they consider any outside assets apart from cash savings that the couple or family may have. The decision was made purely on the earnings of the British partner. Campaigners pointed out that this put many couples in an impossible and frustrating position – as a minimum income threshold which could easily be met were both their incomes taken into account is nigh on impossible for someone to achieve on their own, possibly while also trying to raise a family without the presence and assistance of their partner. Many Britons have moved abroad in order to be with their partner, and live as a family.

Judges were not unsympathetic to the plight of the thousands of couples and families affected by the current Home Office policy. They admitted that the ruling would cause “significant hardship” for many people. They were also heavily critical of the government’s implementation of the policy – particularly as regards children. While upholding the Home Office’s right to continue with their minimum income threshold, they also warned that changes would have to be made. In particular the Home Office must take “proper account” of the nation’s duty to safeguard children. Furthermore, the Supreme Court recommended that “alternative sources” of income were considered during visa applications – not simply the wages of the British party.

The Supreme Court has no legal power to overturn or alter government policies, unless those policies are deemed to be intrinsically unlawful, or in contravention of human rights. The seven judges who considered this case were condemnatory of the suffering it has caused, but ruled that it was not, ultimately, against the law to require families to meet a minimum income threshold before visas could be granted. The Home Office has stated that “The court has endorsed our approach in setting an income threshold for family migration that prevents burdens on the taxpayer and ensures migrant families can integrate into our communities. This is central to building an immigration system that works in the national interest. The current rules remain in force, but we are carefully considering what the court has said in relation to exceptional cases where the income threshold has not been met, particularly where the case involves a child.”

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