12 July 2014
The Home Office has welcomed the recent Court of Appeal judgment which upholds the lawfulness of the minimum income threshold requirement for British Citizens and permanent residents sponsoring a foreign partner or spouse for a UK settlement visa. The new financial requirement was added to the UK family immigration rules on 9 July 2012. This was immediately challenged as being incompatible with family life and the initial ruling from the High Court was broadly supportive of the new rules but found that the impact of the minimum income threshold on family life could be disproportionate. The Home Office appealed against this ruling last year, as it did cast some doubt on the level of income which had been set and the government felt that clarification was needed. While the judgment was awaited, approximately 4,000 UK fiancee, partner and marriage visa applications which fall to be refused on the basis of economic reasons alone have been put on hold by UK Visas & Immigration (UKVI) – these will now be completed after 28 July 2014 and those who have been in this situation have been told that they must be ready to accept failure of their settlement visa application.
The changes to the family immigration rules contained quite a few different criteria but the one which caused the most outcry and also the most problems for families seeking the immigration of a spouse or child was the minimum income one. This called for the sponsor of a foreign fiancee, spouse or partner to be in receipt of an income of at least £18,600 for a spouse or partner alone, £22,400 if there was also a non-British or EU citizen child involved, with another £2,400 for each additional child. The figures were chosen as representing a reasonable level for obtaining acceptable levels of accommodation, food and general upkeep, but were widely criticised for being above the level achievable by many sponsors and therefore likely to divide families, possibly forever.
Commenting on the ruling, the Immigration and Security Minister reiterated that although immigration was welcomed, it was important that ‘…family life must not be established in the UK at the taxpayer’s expense and family migrants must be able to integrate.’ The reason that the original case was brought when the rules were changed in July 2012 was that many believed (and still do, this recent judgment notwithstanding) that it was unlawful because it was ‘discriminatory, manifestly unjust, made in bad faith and involved “such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men”.’ Any rule or clause which actually fulfilled the foregoing criteria would be struck down immediately, but the judgment both in the original case and the recent one handed down by the Court of Appeal do not uphold that contention.
The full judgment is very detailed but for anyone wishing to read it in its entirety, it can be found by pasting the following text into a browser: – MM v Secretary of State for the Home Department [2014] EWCA Civ 985. It is believed that an appeal to the Supreme Court is now being contemplated.
