08/07/2013
The High Court has revealed its judgment relating to the government’s financial threshold rules for those wishing to bring non-EU/EEA family members to the UK on a settlement spouse, unmarried partner or fiancee visa. The current rules, which have been in place since 9 July 2012, set levels of earnings for the UK sponsor (British citizen or legal permanent resident) and although there is some latitude based on levels of savings and other considerations, essentially the rules say that the sponsor must have income of £18,600 per annum as a minimum, rising to £22,400 if one child is on the settlement application, with an additional £2,400 for every child after the first. The UKBA spokesman at the time was reported as saying that the new policy was put in place to prevent immigrating families becoming a burden on the state, but critics say that the threshold is set too high and that in fact there should be no threshold at all as family reunification is one of the fundamental human rights .
The High Court judgment as handed down on 5 July 2013 does not go as far as various immigration charities would have wished but does go part of the way to opening a doorway to having the law changed. The High Court has stated that the rule regarding salary levels is not unlawful but is onerous and unjustified. Although their recommendations have no force of law, the judges did suggest that a more reasonable threshold would be £13,000 as representing more realistically the typical earnings of the workforce in the UK. The level had originally been set with respect to the ‘average’ salary in the country, which of course is no means that earned by the majority as the calculation includes the highest salaries earned as well as the lowest. A more accurate figure would have been the mean salary, in other words what the majority earn and the figure suggested by the High Court reflects this.
Because the High Court has not overturned the rule as a law, the UK Border Agency (UKBA) is not bound to change the decision making processes, but the immigration authorities have actually made some temporary decisions, pending appeals and also a possible readjustment of the threshold. It has been announced that all UK marriage visa applications currently in the system which were in likelihood of refusal for financial reasons only are now ‘paused’. In effect this means that they will not be refused, but on the other hand are not passed either. This is bound to also cause problems for families – some will need their passports during the period of ‘pause’ and if they do, they will have to withdraw their application and there will be no refund. All other settlement applications which would be refused for other reasons, such as failure to meet language requirements, will continue to go through the decision making process as normal.
The threshold earnings policy had been brought before the High Court by three applicants on the basis that it was discriminatory and interfered with Article 8 of the Human Rights Act, the right to a private and family life. After deliberation, the court concluded that the measures were not unlawful on the basis of discrimination, or due to a conflict with the statutory duty to regard the best interests of children while making visa decisions and that it was therefore inappropriate for the High Court to strike down the regulations. However, the judges did recommend that the rules should be looked at again and as a matter of urgency.
An All-Party Parliamentary Group on Migration, meeting completely separately from the High Court proceedings, also came to the conclusion that the rules should be looked at again as they are causing distress to families, some of whom have been separated for a year and more. The findings of the Group, headed by Baroness Hamwee and the ruling of the High Court, whilst not completely solving the problem of families separated by the threshold, have been given a cautious welcome by the Joint Council for the Welfare of Immigrants (JCWI) as they show clearly that the threshold rules for salary and savings are disproportionate.
The pause in decision-making will not affect all applicants, but any who are directly affected will be advised of their situation as soon as possible. The UKBA are at pains to point out that all other rules regarding fee refunds and other requirements regarding visa applications still stand, as indeed does the financial threshold of earnings rule. The only change for now is that some applications are on hold until further notice.
