BRIEFING PAPER
Number 06724, 22 February 2017
The financial (minimum
income) requirement for
partner visas
By Melanie Gower and
Terry McGuinness
Inside:
1. What are the financial (minimum
income) rules?
2. How the Rules are applied
3. Opposition to the minimum
income requirement
4. Legal challenges
www.parliament.uk/commons-library | intranet.parliament.uk/commons-library | [email protected] | @commonslibrary
Number 06724, 22 February 2017
Contents
Summary
3
1.
1.1
1.2
1.3
What are the financial (minimum income) rules?
Overview of the maintenance requirements before and after 9 July 2012
Summary of the rationale for the minimum income requirement
July 2012: Initial reactions to the policy
4
4
5
6
2.
2.1
2.2
2.3
How the Rules are applied
Practical guidance for applicants
The scope for exemptions
Why don’t the Rules affect European migrants?
Ways of satisfying the minimum income requirement
9
9
9
10
12
3.
3.1
3.2
3.3
Opposition to the minimum income requirement
Some common criticisms of the Rules, and counter-arguments
June 2013: APPG on Migration’s inquiry into the impact of the new Rules
The current Government’s view
16
16
19
21
4.
4.1
4.2
4.3
Legal challenges
High Court (July 2013)
Court of Appeal (July 2014)
Supreme Court (February 2017)
23
23
25
27
Cover page image copyright: Marriage I by 19Melissa68. Licensed under CC BY 2.0 /
image cropped.
2
3
The financial (minimum income) requirement for partner visas
Summary
In July 2012 the Immigration Rules were amended to require non-EEA national applicants
to meet a financial, minimum-income requirement in order to secure a visa to join a
spouse or partner in the UK. The sponsoring spouse or partner is required to show a
minimum gross annual income (or equivalent in cash savings) of £18,600. A higher
amount is required when visas are also sought for non-EEA national dependent children.
A visa applicant’s own employment income can only be taken into account if they are
already in the UK with permission to work.
The Coalition Government argued that these requirements ensure families are able to
support themselves and manage the migrant partner’s integration into the UK without
being a burden on the general taxpayer.
Various migrants’ rights groups consider the minimum income requirement to be unfair,
disproportionate and counter-productive. For example, they argue that certain
demographics, such as young people, women, and those living outside of London and the
south east, are particularly affected due to differences in salaries.
In June 2013 a report by members of the APPG on Migration called for an independent
review of the requirement and its impact. A 2015 comparison of immigration policies
across 38 developed states concluded that the UK’s immigration policies are the least
‘family-friendly’, in part due to the minimum income requirement.
The Coalition Government made some minor adjustments to the policy, but was satisfied
overall that it operated as intended. The current Conservative Government also takes the
view that the income requirement supports integration and prevents a burden being
placed on the taxpayer. The Labour party, the SNP, the Liberal Democrats and the Green
party have all expressed support for a review of the requirement.
The lawfulness of the Rules was challenged in the courts. On 22 February 2017 the
Supreme Court handed down its judgment. It held the minimum income requirement is
acceptable in principle. However it found that the Rules and the Immigration Directorate
Instruction giving guidance to entry clearance officers unlawfully fail to take proper
account of the Secretary of State’s duty under section 55 of the Borders, Citizenship and
Immigration Act 2009 to have regard to the need to safeguard and promote the welfare
of children when making decisions which affect them. The Court also held that the rules
and guidance need to be amended to take proper account of other possible sources of
income and third-party financial support.
Number 06724, 22 February 2017
4
1. What are the financial (minimum
income) rules?
The Immigration Rules requirements for leave to enter/remain as the
non-EEA 1 national partner (spouse, fiancé(e), civil partner, prospective
civil partner, unmarried or same-sex partner) or dependent child of a
British citizen or person who has Indefinite Leave, Refugee Status or
Humanitarian Protection in the UK changed on 9 July 2012, as part of a
broader package of changes to the Immigration Rules for family
members. 2
A financial
requirement
(equivalent to a
minimum income of
£18,600) has been in
place since July 2012
One of the most significant changes was the introduction of a financial
(minimum income) threshold in order to satisfy a requirement to have
adequate maintenance funds in place.
Only the visa
sponsor’s income can
be taken into account
if the non-EEA
spouse is not already
living in the UK with
permission to work
1.1 Overview of the maintenance requirements
before and after 9 July 2012
Before 9 July 2012
Since 9 July 2012
Must demonstrate ability to
adequately accommodate and
maintain the applicant without
recourse to public funds
Must demonstrate available
maintenance funds equivalent to
an income of at least £18,600 per
year
With reference to Income Support
levels (in effect requiring a posttax income of £5,500 per year).
(plus an extra £3,800 for one
dependent child and extra £2,400
for each additional child).
A variety of income sources could
be considered, for example:
Only income sources and evidence
specified in the Immigration Rules
can be taken into account, for
example:
Sponsor and/or migrant partner’s
employment overseas and
employment prospects in the UK
Evidence of sufficient independent
means
Support from third parties (such as
family members)
Sponsor’s earnings in the UK, or
sponsor’s overseas earnings and
confirmed job offer in the UK
Migrant spouses’ employment
income (if they are in the UK with
permission to work)
Migrant spouse’s overseas
employment income or offers of
employment in the UK, and offers of
third party support cannot be taken
into account.
1
2
EEA – European Economic Area (comprised of EU Member States plus Iceland,
Norway and Liechtenstein). Swiss nationals have similar rights as EEA nationals.
HC 194 of 2012-13; summarised in Library Standard Note SN06353 Changes to
Immigration Rules for family members.
5
The financial (minimum income) requirement for partner visas
The requirement was relevant
when applying for temporary
leave to remain (after a two year
probationary period, the migrant
partner could apply for Indefinite
Leave to Remain).
The requirement must be satisfied
at two application stages (during a
five year probationary period), and
when applying for Indefinite Leave
to Remain.
Before and after July 2012, people who come to the UK as partners of
British citizens/ permanent residents have not been able to access most
benefits, tax credits or state housing assistance, due to a ‘no recourse to
public funds’ visa condition.
1.2 Summary of the rationale for the minimum
income requirement
The changes to the family migration rules (including the introduction of
the minimum income requirement) were introduced to further the
Coalition Government’s objective of reducing net migration levels from
hundreds of thousands to tens of thousands. 3 However the Coalition
Government emphasised other policy objectives in explaining the
rationale behind the minimum income requirement.
Ministers considered that family migrants and their British-based
sponsors should have sufficient financial resources to be able to
support themselves and enable the migrant to participate in society
without being a burden on the general taxpayer. 4 The Government
changed the maintenance requirements because it did not consider
that the Immigration Rules in place before July 2012 were sufficient for
these objectives.
The minimum income threshold was set at £18,600 after the Coalition
considered advice from its Migration Advisory Committee (MAC). 5 The
MAC had recommended a minimum gross sponsor income threshold of
between £18,600 and £25,700 per year to sponsor a partner. The
different thresholds reflected different approaches to calculating
“burden on the state”. The MAC estimated that around 45% of
applicants would fall short of the lower threshold amount and 64% of
applicants would not satisfy the upper threshold. The MAC emphasised
that its recommendations were purely based on economic
considerations, and did not take into account wider legal, social or
moral issues related to family migration.
The MAC had identified £18,600 as the level of annual gross pay at
which a couple would not receive income-related benefits (assuming
3
4
5
HC Deb 15 October 2012 c90W
HC Deb 11 June 2012 cc48-50
MAC, Review of the minimum income requirement for sponsorship under the family
migration route, November 2011
The rule is intended to
ensure that sponsors
have sufficient
resources to support
themselves and their
partner without being
a burden on the
taxpayer
£18,600 is the level of
gross annual pay at
which a couple would
not receive incomerelated benefits
Number 06724, 22 February 2017
6
weekly rent of £100). 6 The Coalition Government said that it intended to
review the level of the financial requirement annually, and that it may
be affected by the roll-out of Universal Credit. 7
The higher income requirement for sponsoring a child is intended to
reflect “the education and other costs arising in such cases”. 8 It applies
at each application stage until the migrant partner is granted
permanent settlement, even if the dependent child turns 18 before this
time (unless they have been granted an immigration status in their own
right). 9 It applies to biological children, step-children and adopted
children (in certain circumstances), and children coming for the purpose
of adoption who are subject to immigration control and applying for
limited leave to enter or remain under Appendix FM or the relevant
paragraphs of Part 8 of the Immigration Rules.
The financial
requirement is higher
if children are also
being sponsored
(subject to certain
exceptions)
The minimum income requirement does not apply in respect of
applications from a child who:
•
•
•
•
Is a British citizen (including an adopted child who acquires British
citizenship);
Is an EEA national (except where a non-EEA spouse or partner is
being accompanied or joined by the EEA child of a former
relationship who does not have a right to be admitted to the UK
under the Immigration (EEA) Regulations 2006);
Is settled in the UK or qualifies for indefinite leave to enter; or
Qualifies in a category under Part 8 or Appendix Armed Forces of
the Immigration Rules which is not subject to the financial
requirement.10
1.3 July 2012: Initial reactions to the policy
In Parliament
Responding to then Home Secretary Theresa May’s oral statement on
11 June 2012, Yvette Cooper, then Shadow Home Secretary, said Labour
supported strengthening the family immigration rules to protect UK
taxpayers. However, she cast doubt on the effectiveness of the
Government’s approach:
We agree that stronger safeguards are needed for the taxpayer
on family migration. If people want to make this country their
home, they should contribute and not be a burden on public
funds, but it is not clear that the best way to protect the taxpayer
is to focus solely on the sponsor’s salary. For example, in the
current economic climate, someone on £40,000 today could lose
6
7
8
9
10
MAC, Review of the minimum income requirement for sponsorship under the family
migration route, November 2011, para 4.50
Home Office ,Statement of Intent: Family migration, 12 July 2012, para 80
Home Office ,Statement of Intent: Family migration, 12 July 2012, para 85
If the higher minimum income requirement continues to apply in respect of a child
over 18, their income and savings can be counted towards the requirement.
Home Office, Immigration Directorate Instructions, ‘Chapter 8 Appendix FM (family
members)’, Annex FM 1.7 ‘Financial requirement’, April 2015
The requirement has
proved controversial
7
The financial (minimum income) requirement for partner visas
their job next month, and then, of course, there is no way to
protect the taxpayer. The system does not take account of the
foreign partner’s income, which might have a differential impact
on women. Will the Home Secretary explain why the Government
ruled out consulting on a bond that could have been used to
protect the taxpayer if someone needed public funds later on? 11
In response, the Home Secretary said that a bond “would only be
available to those people who had capital and were able to put up a
bond in the first place.” 12
There was a mixed response from backbench Members to the Home
Secretary’s statement. Some welcomed the changes, expressing hopes
that they will tackle public concerns about migrants’ (lack of)
integration, ‘sham marriages’, and a lack of public confidence in the
immigration system. 13
Others were more critical. Several Members highlighted examples of
constituency cases that would be unable to satisfy the minimum income
threshold and raised concerns that certain groups would be
disproportionately affected, such as young people, ethnic minorities,
women and people living in low-pay areas. 14 Fiona MacTaggart
described the financial requirement as a “means test on family life”, and
contrasted it with the Government’s previously-stated “family-friendly”
intentions. 15
NGOs, think-tanks, academia
Initial responses to the July 2012 changes from various migrants’ rights
and civil liberties organisations raised concerns that they would
undermine, rather than enhance, migrant family members’ prospects for
integration.
Several highlighted particular concerns about the minimum income
requirement and the effect it was likely to have on groups more likely to
be in low-paid employment. The Family Immigration Alliance, a forum
for British/ settled partners with experiences of sponsoring partners’
applications, described the minimum income requirement as “an act of
obscene discrimination”, and argued that a precedent had been set
“where finance extends beyond your quality of life, into your freedom to
have a family at all.” 16
The Migrants’ Rights Network warned that the changes would
“introduce additional hurdles and costs for people, particularly lower
11
12
13
14
15
16
HC Deb 11 June 2012 cc50-1
HC Deb 11 June 2012 cc51-2
HC Deb 11 June 2012 c54, c57
HC Deb 11 June 2012 c54, c59
HC Deb 11 June 2012 c58
Family Immigration Alliance, ‘Family Immigration Rules announced’, 11 June 2012
The changes to the
Rules were met with
a mixed response
Number 06724, 22 February 2017
earners” and were likely “to be viewed more widely as unfair as their
impacts on both migrants and British people are realised”. 17
The Migrant Integration Policy Index (MIPEX) project, which is led by the
Barcelona Centre for International Relations and the Migration Policy
Group think-tank, runs an interactive website comparing migrants’
integration opportunities. It is based on analysis of immigration policies
in over 30 countries. A July 2012 blog post written by one of its
Research Co-ordinators cautioned that the minimum income
requirement might undermine migrants’ integration prospects:
A high income threshold does not effectively promote long-term
economic participation, education, language learning, or fighting
forced marriages. Instead, such requirements have a
disproportionate impact on limiting the number of family
reunions, especially for low-income and vulnerable groups. For
many, family life becomes harder or impossible through ‘enforced
separation.’ The OECD finds that every extra year that child
spends in country of origin and not in country of destination has
a negative impact on their language learning and societal
adjustment. The OECD’s conclusion is that family reunion should
be facilitated as soon as possible. British policy actors must strictly
scrutinise whether the new family reunion requirements
exacerbate some of the very problems that they are supposed to
address. 18
On the other hand, Migration Watch issued a brief statement
welcoming the changes, which it considered would enhance family
migrants’ prospects for integration. 19
17
18
19
Migrants’ Rights Network, Government changes to the family migration rules MRN
e-briefing, June 2012
MIPEX Blog, ‘Can’t Buy Me Love’, 6 July 2012
Migration Watch, press release, ‘Comment by Kiran Bali on Changes to Family
Migration’, 11 June 2012
8
9
The financial (minimum income) requirement for partner visas
2. How the Rules are applied
2.1 Practical guidance for applicants
The content (and format) of the Immigration Rules for family members
of British/settled persons who wish to join them in the UK are complex.
They are spread between Part 8 and Appendix FM and FM-SE of the
Immigration Rules. Paragraphs A277 - A279 of the Immigration Rules
set out which parts of the Rules apply to pre- and post- 9 July 2012
spouse/fiancé(e)/partner visa applicants.
The ‘Family visas’ section on the GOV.UK website has general
information for non-EEA nationals about applying to join or remain in
the UK with a British/settled partner. It also links to the detailed policy
guidance about the financial requirement and other eligibility criteria
which is used by UK Visas and Immigration (UKVI) caseworkers when
deciding applications. 20
The Immigration Law Practitioner’s Association has produced several
information sheets on the changes to the family migration rules and
related developments. As always, constituents seeking advice specific to
their circumstances should consult a suitably qualified professional. The
website of the Office of the Immigration Services Commissioner
explains about the regulation of immigration advisers and includes a
useful online ‘adviser finder’.
2.2 The scope for exemptions
People granted leave to remain in a family immigration category before
9 July 2012 remain covered by the Immigration Rules in force prior to
that date. They are not subject to the minimum income requirement. 21
For applications submitted on or after 9 July 2012, there is no scope to
make exceptions to the minimum income requirement where the
Immigration Rules require that it is satisfied. It applies when the migrant
is first applying for temporary immigration leave to remain as a family
member, when they apply to renew their temporary immigration status,
and after five years, when they become eligible to apply for Indefinite
Leave to Remain.
There is no scope to
make exceptions to
the rule
However, the minimum income requirement does not apply if the UKbased sponsor is in receipt of the following benefits:
Only sponsors in
receipt of Carer’s
Allowance and
certain disabilityrelated benefits are
exempt
•
Disability Living Allowance; Severe Disablement Allowance,
Industrial Injuries Disablement Benefit, Personal Independence
Payment, Attendance Allowance, or Carer’s Allowance.
20
Home Office, Immigration Directorate Instructions, ‘Chapter 8 Appendix FM (family
members)’. In particular, Annex FM 1.7 ‘Financial requirement’ and Annex 1.7a
‘Maintenance’ discuss in detail how the minimum income requirement is applied.
Further information can be found in Paragraphs A277 - A279 of the Immigration
Rules and the Immigration Directorate Instructions ‘Chapter 8 family members
transitional arrangements’.
21
Number 06724, 22 February 2017 10
Instead, the sponsor must demonstrate that they have “adequate
maintenance” funds in place, in line with the pre- July 2012
requirements. 22 However, the minimum income requirement will apply
in subsequent applications if the sponsor’s circumstances have
changed. In March 2013 the Coalition Government confirmed that a
review of the exemptions for sponsors who are disabled or carers was
ongoing and would be concluded ‘shortly’, and that affected persons
should not assume that the exemption would necessarily remain after
April 2013. 23 However these exemptions remain in place to date.
Applications sponsored by a member of HM Armed Forces personnel
were initially exempt from the minimum income requirement and
continued to be assessed against the pre-9 July 2012 Immigration Rules
requirements. 24 However, they became subject to the minimum income
requirement on 1 December 2013. 25 The main difference with nonArmed Forces cases is that partners in Armed Forces cases are initially
given leave to remain for five years (rather than two and a half years as
is the case for civilian cases). This affects the way in which the couple’s
cash savings are calculated, if they choose to rely on such savings in
order to meet the minimum income requirement.
People in receipt of certain payments related to service in HM Armed
Forces (under the Armed Forces Compensation Scheme or War
Pensions Scheme) are exempt from the minimum income
requirement. 26
Why don’t the Rules affect European migrants?
The rights of EU/EEA (hereafter, EEA) 27 nationals and their family
members to come to the UK derive from European law (specifically,
Directive 2004/38/EC, often referred to as the Citizens’ Directive or ‘Free
Movement of Persons’ Directive). 28 For as long as the UK remains an EU
Member State it is subject to laws guaranteeing EEA nationals the right
to free movement throughout the Union.
Non-EEA nationals, including family members of British citizens, are
subject to the UK’s Immigration Rules. The Immigration Rules do not
have to mirror European law, and indeed it has long been the case that
they have contained more restrictive eligibility criteria for family
members than European law. The financial requirement is another
22
23
24
25
26
27
28
The guidance states applicants cannot rely on offers of support from third parties.
Home Office, Immigration Directorate Instructions, Chapter 8 Appendix FM (Family
members), Annex FM section FM 1.7A, April 2013
HC 1039 of 2012-13
HC Deb 11 June 2012 c60
HC 803 of 2013-14; see also Home Office, Family members of HM Forces statement
of intent: Changes to the Immigration Rules from December 2013, 4 July 2013
HC 803 of 2013-14
EEA – European Economic Area (comprised of EU Member States plus Iceland,
Norway and Liechtenstein.
Transposed into domestic legislation by the Immigration (European Economic Area)
Regulations 2006, SI 2006/1003 (as amended). EEA and Swiss nationals have similar
rights due to bilateral agreements with the EU.
EEA migrants do not
have to satisfy a
financial requirement
in order for their
family members to
join them in the UK;
their rights derive
from European law
11
The financial (minimum income) requirement for partner visas
example of such a difference - EU law does not specify a minimum
income or specific level of resources that the EEA national must have in
order for their non-EEA family member to join them in the host
Member State. Migration Watch has called for financial eligibility criteria
to be applied to non-EEA national family members of EU citizens living
in the UK in a similar way as is the case under the Immigration Rules. 29
European law does not consider EEA nationals to be exercising their
‘free movement’ rights whilst they are living in their own country.
Therefore non-EEA family members of EEA nationals cannot rely on EU
free movement law to join and live with their loved ones in Europe.
However, following the European Court of Justice’s decision in the
‘Surinder Singh’ case, an exception is made if the EEA citizen has been
exercising their free movement rights in another EU Member State but
then wishes to return to their country of nationality with their family
member. 30 In those circumstances a non-EEA national spouse may be
treated as the family member of an EEA citizen in accordance with EU
free movement law, rather than being subject to the country’s own
national immigration law. 31
There are limited
circumstances in which
British citizens can use
European law to bring
their non-EEA family
members to the UK
without having to satisfy
the financial
requirement
The UK only applies this ‘Surinder Singh route’ to non-EEA nationals
whose British citizen relatives exercised their free movement rights as a
worker or self-employed person.
There is anecdotal evidence to suggest that some British citizens particularly those who cannot satisfy the visa requirements under the
Immigration Rules - opted to live and work in another EU Member State
temporarily, in order to be able to return to the UK with their non-EEA
partner under European law instead of applying for a visa under the
Immigration Rules. 32
In December 2013 the Coalition Government amended the regulations
transposing the Free Movement of Persons Directive into UK law, to
require a British citizen to have transferred the “centre of their life” to
another Member State in order for a non-EEA partner to avail of the
‘Surinder Singh route’. 33 The accompanying Explanatory Memorandum
to the SI explained:
7.11 (...) Whether or not a British citizen has transferred the centre
of their life to another member State will be assessed by
reference to a number of criteria, including the length of
residence, the degree of integration and whether or not the
British citizen has moved their principal residence to that other
member State.
29
30
31
32
33
Migration Watch briefing 4.22, Family permits for EU citizens in Britain, 9 May 2013
ECJ, C-370/90.
UKBA, Entry Clearance Guidance, EUN2,14 - EEA family permits, (undated; accessed
on 6 September 2013)
BBC News [online], “The Britons leaving the UK to get their relatives in”, 25 June
2013
Immigration (European Economic Area) (Amendment) (No.2) Regulations 2013, SI
3032/2013
The Government
moved to close the
loophole allowing
British citizens to
circumvent the
Immigration Rules
on family visas
Number 06724, 22 February 2017 12
The changes were made “in order to ensure that there has been a
genuine and effective use of free movement rights in the other Member
State before such rights may apply by analogy upon return to the UK.”
One of the intended effects was “preventing abuse by those British
citizens who move temporarily to another member State in order to
circumvent the requirements of the usual immigration rules for their
family members upon return to the UK.” The EU Rights Clinic at the
University of Kent posted some commentary on the change on its
blog. 34
There were reports that the European Commission was investigating the
UK’s interpretation of the Free Movement of Persons Directive and
related case law, noting that the Directive does not specify a
requirement to have transferred the “centre of one’s life” to the host
Member State. 35
Appearing before the Home Affairs Select Committee in February 2015,
James Brokenshire, then Immigration Minister, acknowledged that the
minimum income restrictions limited the rights of British nationals, while
other EU nationals were unaffected:
“[…] it is something we are concerned about in relation to
settlement and marriage and the difference of application that is
applied. I do not find that acceptable and it is something that
needs to be addressed.” 36
2.3 Ways of satisfying the minimum income
requirement
Only income from sources that are specified in Appendix FM-SE of the
Immigration Rules can be considered when assessing whether an
application satisfies the minimum income requirement. The Home
Office’s policy guidance on the financial requirement summarises the
five acceptable income sources:
Income from salaried or non-salaried employment of the partner
(and/or the applicant if they are in the UK with permission to
work). This is referred to as Category A or Category B, depending
on the employment history. See section 5 of this guidance.
Non-employment income, e.g. income from property rental or
dividends from shares. This is referred to as Category C. See
section 6 of this guidance.
Cash savings of the applicant’s partner and/or the applicant,
above £16,000, held by the partner and/or the applicant for at
least 6 months and under their control. This is referred to as
Category D. See section 7 of this guidance.
34
35
36
EU Rights Clinic Blog, ‘UK Changes Rules on Surinder Singh route’, 8 December 2013
Free Movement blog, ‘EU to investigate UK interpretation of Surinder Singh’, 2
September 2014
Home Affairs Committee, The work of the Immigration Directorates 2014 Q2, 10
February 2015, HC 902 2014-15, Q39
The Immigration
Rules specify which
income sources can
be used to satisfy the
requirement, and
what type of
supporting evidence
must be provided
13 The financial (minimum income) requirement for partner visas
State (UK or foreign) or private pension of the applicant’s partner
and/or the applicant. This is referred to as Category E. See section
8 of this guidance.
Income from self-employment, and income as a director of a
specified limited company in the UK, of the partner (and/or the
applicant if they are in the UK with permission to work). This is
referred to as Category F or Category G, depending on which
financial year(s) is or are being relied upon. See section 9 of this
guidance. 37
Various combinations of these sources are allowed in order to meet the
minimum income requirement, however certain combinations are not.
For example, cash savings can be combined with income from salaried
and non-salaried employment in certain circumstances, but they cannot
be combined with income from self-employment.
There are specific criteria attached to each of these permitted income
sources. For example, as the descriptions for categories A and B
indicate, the migrant applicant’s employment income can only be taken
into account once they are in the UK with permission to work - their
overseas employment income, or prospective earnings from a job offer
in the UK, will not be considered. Therefore, only the sponsor (i.e. the
British/settled partner)’s employment income is considered if the
applicant is not already living and working in the UK.
Furthermore,
•
If the sponsor is in the UK and relying on their employment
income, they must be in employment at the point of application
(with a gross annual salary which meets the financial requirement
alone or combined with other permitted sources) and either:
•
─
have been so continuously for the previous six months or
─
if employed for less than six months, have also received
over the previous 12 months the level of income required
through gross salaried income and/or other permitted
sources.
If the sponsor has been living overseas and is returning to the UK
with the applicant, they must have a verifiable job offer or signed
contract of employment to start work within three months of their
return (with an annual salary which is sufficient to meet the
financial requirement on its own or in conjunction with other
permitted sources). They must also either:
─
37
be in employment overseas at the point of application (with
a gross annual salary which meets the financial requirement
alone or in combination with other permitted sources) and
have been so continuously for at least the previous six
months; or
Home Office, Immigration Directorate Instructions, Chapter 8 Appendix FM (Family
members), Annex FM 1.7 (accessed on10 April 2015))
Number 06724, 22 February 2017 14
─
have received the level of income required over the
previous 12 months through gross salaried income and/or
other permitted sources.
The Immigration Rules and associated policy guidance also specify what
pieces of evidence must be submitted in order to demonstrate income
from each of the permitted sources. For example, an application relying
on income from salaried employment must provide:
•
•
•
Wage slips covering 6 or 12 months prior to the date of the
application (depending on the length of employment); and
A letter from the employer(s) who issued the wage slips,
confirming the person's employment and gross annual salary; the
length of their employment; the period over which they have
been or were paid the level of salary relied upon in the
application; and the type of employment (permanent, fixed-term
contract or agency); and
Personal bank statements corresponding to the same period(s) as
the wage slips, showing that the salary has been paid into an
account in the name of the person or in the name of the person
and their partner jointly.
The guidance states that in addition, P60(s) for the relevant period(s) of
employment (if issued) and a signed contract(s) of employment may
also be submitted or requested by the decision-maker, in respect of
paid employment in the UK.
If cash savings are being relied on to satisfy the minimum income
requirement, they must have been held by the applicant, their partner
or both jointly and under their control, and for at least the six months
prior to the date of application. The first £16,000 in cash savings are not
taken into account. This is because £16,000 is the level at which a
person generally ceases to be eligible for income-related benefits.
When applying for temporary leave to remain, the amount of cash
savings that can be counted towards the income requirement is
calculated by dividing the amount of savings over £16,000 by 2.5 (this is
equivalent to the number of years of temporary leave being applied
for). When applying for Indefinite Leave to Remain (after five years), all
cash savings over £16,000 can be considered.
In practice, therefore, when applying for temporary leave as a partner:
•
•
38
£62,500 in cash savings is required if no other income sources are
being used to meet the income requirement: (62,500-16,000) / 2.5
= 18,600
£17,500 in cash savings is required if the sponsor’s income is
£18,000, in order to make up the £600 shortfall: (17,500-16,000) /
2.5 = 600 38
The amounts may differ for family members of Armed Forces sponsors.
The first £16,000 in
cash savings are not
taken into account,
because this is the level
at which a person
generally ceases to be
eligible for incomerelated benefits
15 The financial (minimum income) requirement for partner visas
Some changes have been made to the Immigration Rules and policy
guidance, in response to calls for greater flexibility. 39 For example, some
flexibility was introduced about the length of time that cash savings
arising from the realisation of an asset must be held, and it has been
confirmed that academic stipends or maintenance grants can be
counted as income. It has also been confirmed that caseworkers have
the discretion to contact applicants to request further information or
documentation before making a decision on the application.
39
HC 1039 of 2012-13; HC 628 of 2013-14
Number 06724, 22 February 2017 16
3. Opposition to the minimum
income requirement
Various civil society organisations have campaigned against the
minimum income requirement – see, for example, the websites of the
Joint Council for the Welfare of Immigrants, Migrants’ Rights Network,
BritCits and the Family Immigration Alliance.
Perhaps unsurprisingly, given its impact on British citizens across the
UK, the minimum income requirement has also attracted considerable
interest amongst Parliamentarians. Parliamentary Questions are often
asked about the income requirement, and an Early Day Motion in the
2014-15 session, which called for the requirement to be applied with
more flexibility, attracted 52 signatures.
Various civil society
organisations and
Parliamentarians
have argued that the
financial requirement
is unfair,
disproportionate and
counter-productive
3.1 Some common criticisms of the Rules, and
counter-arguments 40
Is the threshold set too high?
UKVI (previously UKBA) case file analysis cited in the Home Office’s
Impact Assessment suggested that around 45% of sponsors sampled
were not in employment or earned less that £18,600 per annum. It also
noted that the Annual Survey for Hourly Earnings indicated that around
40 - 45% of UK residents earn less than £18,600. The minimum wage for
a 40 hour week for workers over 21 is currently equivalent to £13,124 per
annum. The Coalition Government said that £18,600 is the income level
at which a couple generally cease to be eligible for income-related
benefits. The Impact Assessment suggested that a proportion of people
earning less than this would still be eligible to sponsor a partner visa for example, if they were in receipt of certain welfare benefits and
therefore exempt from the requirement, or if they and their partner had
appropriate sources of non-employment income, or if they increased
their working hours or skills in order to earn a higher income.
The financial requirement has been cited as one of the reasons why the
UK is now considered to have the least ‘family-friendly’ immigration
policies in the developed world, according to the 2015 Migrant
Integration Policy Index. 41
40
41
For relevant sources see, for example, MRN briefing, ‘What are the consequences of
minimum income requirement for family migrants in the UK?’, 28 July 2013; The
family migration income threshold: Pricing UK workers out of a family life, June
2014APPG Migration, Report of the Inquiry into new Family Migration Rules, June
2013; HC Deb 19 June 2013 cc254-279WH; HL Deb 4 July 2013 cc1385-1406; Home
Office Impact Assessment IA No. HO0065 Changes to family migration rules, 12 June
2012; Home Office, Letter from Lord Taylor of Holbeach to Baroness Hamwee, 5
August 2013, DEP2013-1434
MIPEX, Country profile: United Kingdom (undated; accessed on 12 June 2015)
Around 40-45% of
UK residents earn less
than £18,600
17 The financial (minimum income) requirement for partner visas
Does the policy discriminate against particular
demographic groups?
The University of Oxford’s Migration Observatory analysed which
demographic groups are most affected by the minimum income
requirements, using data from the Labour Force Survey. The research
found that the minimum income requirement “has important indirect
effects across gender, ethnicity, education, age and place of
residence.” 42
The research found that while 28% of British males working as
employees did not earn enough to sponsor a non-EEA spouse, this rose
to 57% for their female counterparts. The minimum income
requirement “hits some ethnic groups harder than others”, according to
the same research. While 43% of “white” employees did not earn
enough to sponsor a non-EEA spouse, this rose to 51% for “non white”
employees. Young people were hit “particularly hard” by the policy, with
the research finding that “60% of British nationals in their 20s were
unlikely to earn enough to sponsor a non EEA spouse.
Research has found
that the requirement
has indirect effects
depending on
gender, ethnicity,
education, age and
place of residence
The Migration Observatory’s research also found “noticeable disparities
across educational levels”. While 24% of British employees who had
completed higher education or a degree did not earn enough to
sponsor a non-EEA spouse, this rose to 76% of those who had no
academic qualifications. 43
Should the income threshold take regional differences
into account?
Some have argued that there should be variable income thresholds to
reflect differences in wages and living costs across the UK (and
overseas). Research published in June 2014 by the Migrants’ Rights
Network, which opposes the minimum income requirement, found 74
parliamentary constituencies where the £18,600 income requirement
was higher than the earnings of 50% or more of all residents in
employment. 44 The Migration Observatory’s research showed that while
only 30% of British employees in London did not earn enough to
sponsor a non EEA spouse, this rose to 49% for those in Yorkshire and
Humberside, and 51% for those in Northern Ireland.45
The MAC’s report to the Coalition Government did not consider these
arguments in detail, but said that it did not see a clear case for
42
43
44
45
The Migration Observatory, ‘Love and money: how immigration policy discriminates
between families’, 17 November 2014
ibid
MRN, The family migration income threshold: Pricing UK workers out of a family life,
June 2014
The Migration Observatory, ‘Love and money: how immigration policy discriminates
between families’, 17 November 2014
Calls for regional
variations to the
threshold have been
rejected on the
grounds that a
national threshold
gives clarity and is
easier to enforce
Number 06724, 22 February 2017 18
differentiation. 46 The Coalition shared the MAC’s concerns. It believed
that a single national threshold provided clarity and simplicity for
applicants and Home Office staff. It also pointed out that the benefit
system is not regionalised (with the exception of housing benefits) in
spite of regional differences in wages and costs of living. The Coalition
Government also argued that regional thresholds would be difficult to
enforce, since there would be a risk that some sponsors would
temporarily move to an area with a lower income threshold until the
visa had been granted. Another concern was that families who had to
move for other reasons, or who lived in a relatively poor part of an
affluent region (or vice versa) might be unfairly dis/advantaged by
differential thresholds.
Are the evidential requirements unduly restrictive?
Although the Coalition Government made some minor adjustments to
the Rules since July 2012, critics have highlighted examples of
inflexibility in the way in which the minimum income threshold is
assessed. For example, there is no scope to reduce or waive the
minimum income threshold if a couple has reduced costs of living due
to offers of third-party support (such as accommodation provided by
relatives), or to take into account an applicant’s high earnings overseas
or job offers in the UK, or cash savings below £16,000 or which have not
been held for six months.
The Coalition Government argued that offers of third party support are
vulnerable to changes in circumstances or relationships. Furthermore, it
argued that employment overseas, employment prospects in the UK or
promises of employment were no guarantee to getting a job. It
suggested that if a migrant partner had a confirmed job offer in the UK,
they could apply under Tier 2 of the points-based system instead,
although it acknowledged that the eligibility criteria for Tier 2 visas
would rule this out in some cases. It also argued that there are some
permitted income sources which allow the migrant partner’s nonemployment income to be taken into account.
Calls to take migrant
partners’ overseas
earnings or
prospective earnings
in the UK into
account have been
rejected
It said that at least six months’ evidence of cash savings is necessary in
order to ensure that the funds are genuinely under the couple’s control
and not the product of a short-term loan, and that it is reasonable to
expect applicants to organise their finances in accordance with the
requirements of the Immigration Rules.
Is the minimum income requirement saving money or
leading to unforeseen costs?
Some families affected by the changes to the Rules argued that they
undermined the Coalition Government’s objectives to promote selfsufficiency and family unity. For example, if a British citizen returns to
the UK to find a job at the appropriate minimum income threshold, they
46
MAC, Review of the minimum income requirement for sponsorship under the family
migration route, November 2011, paras 4.43-4.44
Some couples are
facing separation of
six months or more,
due to the nature of
the evidence
requirements
19 The financial (minimum income) requirement for partner visas
will need to work for at least six months before they can sponsor the
application. There have been accounts of families enduring prolonged
periods of separation due to not being able to satisfy the minimum
income requirement. It has also been argued that some families have
needed recourse to public funds, which would not have been necessary
if the migrant partner was able to join them in the UK and share the
sponsor’s work and caring responsibilities.
The Home Office’s Impact Assessment estimated the minimum income
requirement would bring an overall net benefit of £660million over ten
years. This estimate included consideration of the reduction in direct tax
revenue from working migrant partners, and savings in healthcare,
education and welfare.
Middlesex University argued that the Coalition Government did not take
into account the loss of the wider economic benefits of migrant
partners’ economic activity. Using an alternative model for calculations
based on the figures in the Government’s Impact Assessment, it has
suggested that the changes could cost the UK £850million over ten
years. 47 The Coalition did not accept these conclusions. 48
3.2 June 2013: APPG on Migration’s inquiry
into the impact of the new Rules
In June 2013 a committee of members of the All-Party Parliamentary
Group (APPG) on Migration 49 published a report of their inquiry into the
impact of the family migration rules changes. 50 The inquiry focussed on
the impact of the minimum income requirement for partner visas, and
other changes affecting adult dependent relatives (not discussed in this
note). Over 280 submissions of evidence were received, over half of
which were from families affected by the rules. 51
The report recommended an independent review of the minimum
income requirement and its impacts, to consider whether the level of
the income requirement and the range of permitted income sources
“represent an appropriate balance between the different interests in this
area”. 52 The Coalition Government rejected this idea, stating that it was
satisfied that the family Immigration Rules “are operating as intended”
but that it would keep their impact under review.53
The committee had found that the minimum income requirement had
resulted in some British citizens and permanent residents being
separated from their non-EEA national partner/children, including
47
48
49
50
51
52
53
Middlesex University, ‘The fiscal implications of the minimum income requirement:
what does the evidence tell us?’ July 2013
HL Deb 24 July 2013 cWA248
Migrants’ Rights Network provides the secretariat to the APPG on Migration.
APPG Migration, Report of the Inquiry into new Family Migration Rules, June 2013
APPG on Migration, ‘Family inquiry’ (undated; accessed on 6 September 2013)
APPG Migration, Report of the Inquiry into new Family Migration Rules, June 2013,
p.35
HL Deb 26 June 2013 ccWA147-8
There are conflicting
estimates of the
economic impact of
the requirement
Number 06724, 22 February 2017 20
sponsors who were in full-time employment and earning above the
minimum wage. Submissions of evidence suggested that sponsors
based outside London and the South East, and in lower-earning
sections of the population (including women, young adults, the elderly
and some ethnic minority groups) had been particularly affected. It
received evidence suggesting that there had been some unforeseen
costs to the public purse as a result of non-EEA national partners’
exclusion from the UK, such as UK-based sponsors having increased
recourse to welfare benefits, and a loss of potential tax revenue from
non-EEA partners’ future earnings.
In addition, the committee contended that the limited range of income
sources that can be taken into account appeared to have delayed or
prevented some families from living together in the UK, including cases
involving high income/high net worth individuals.
The UK’s four Children’s Commissioners endorsed the report, and
particularly its recommendation that the Immigration Rules should
“....ensure that children are supported to live with their parents in the UK
where their best interests require this.” 54 In June 2013 they published a
briefing which summarised the UK’s obligations in domestic and
international law and their concerns about how the new family
migration rules have impacted on children’s rights to family life.55
The Coalition Government’s response: willing to
consider some minor changes
Following the publication of the APPG’s report, a related Westminster
Hall debate about the effects of the new family migration rules took
place on 19 June 2013. 56 A similar debate took place in the House of
Lords on 4 July 2013. 57
During the debate in the Commons, Mark Harper, then Minister for
Immigration, indicated a willingness to consider whether there was
scope to introduce greater flexibility in the evidential requirements, such
as in cases where the migrant partner has a job offer:
I am prepared to consider whether we can put in place some
rules that are not vulnerable to abuse. The best argument was the
example of a couple, one of whom would be working here but
was insufficiently skilled to meet the criteria to apply under the
tier 2 scheme. (...) If people can get here under a tier 2 visa, that is
fine. However, clearly there are people who could make a
contribution but could not meet those criteria.
54
55
56
57
APPG Migration, Report of the Inquiry into new Family Migration Rules, June 2013,
p.35
Children’s Commissioners, “The UK Children’s Commissioners’ briefing on the All-
Party Parliamentary Group on Migration: Report of the Inquiry into the New Family
Migration Rules”, June 2013
HC Deb 19 June 2013 cc254-279WH
HL Deb 4 July 2013 cc1385-1406
21 The financial (minimum income) requirement for partner visas
The situation is not quite as straightforward as people say,
because we must guard against abuse. If all people have to do is
to show a piece of paper saying that they have a job offer, I know
from the number of cases I have seen that it will not be long
before people are setting up vague companies and offering jobs
that do not exist. There must be a way of putting in place
processes that do not lead to abuse. I think that is worth doing
and I am prepared to go away and do so. 58
In a subsequent Westminster Hall debate on the financial requirement
in September 2013, the Minister confirmed that the Home Office was
considering how the Rules could take a migrant spouse’s job offer into
account, and that it remained willing to consider arguments for further
changes where “unintended consequences” of the Rules are brought to
its attention. 59
Some minor changes to the evidential requirements came into effect on
1 October 2013, such as allowing for electronic bank statements to be
submitted and for cash savings to include proceeds from a sale of
property. 60 The changes also included allowing sponsors returning to
work in the UK to count future on-target earnings towards the financial
requirement. In response to a parliamentary question in December
2014, the then Immigration Minister said that family migration would
remain under “ongoing review” into Spring 2015:
Some minor changes
to the evidential
criteria have been
made in response to
feedback
We studied the report of the APPG on Migration’s inquiry into
family migration when this was published in June 2013. This
ongoing review process will continue in April 2015 and will also
take into account the findings of the courts on the new policies. 61
3.3 The current Government’s view
In response to a Parliamentary Question in September 2015, then
Immigration Minister James Brokenshire explained how the
Conservative Government view the minimum income requirement:
We welcome those who wish to make a life in the UK with their
family, work hard and make a contribution, but family life must
not be established here at the taxpayer's expense. The minimum
income threshold under the family Immigration Rules for
sponsoring a non-European Economic Area national spouse to
come to the UK aims to prevent burdens on the taxpayer and
promote integration. Its level reflects advice from the
independent Migration Advisory Committee on the income which
means a family settled in the UK will generally cease to be able to
access income-related benefits.
The employment prospects of the migrant spouse are no
guarantee that they will find work in the UK. Those with an
appropriate job offer here can apply under Tier 2 of the Points
58
59
60
61
HC Deb 19 June 2013 c277-8WH
HC Deb 9 September 2013 c808-810WH
HC 628 of 2013-14
PQ 218487 [on Immigration Controls], 11 December 2014
The Conservative
Government
reiterated that
migrants must not
become burdens on
the taxpayer and are
expected to integrate
into UK life
Number 06724, 22 February 2017 22
Based System. Migrant spouses coming to the UK under the
family route must be capable of being independently supported
by their sponsor or by their joint savings or non-employment
income. The courts have agreed that this is a matter of public
policy for the Government and Parliament to determine. 62
62
PQ 9697, 14 September 2015
23 The financial (minimum income) requirement for partner visas
4. Legal challenges
In February 2017 the Supreme Court upheld the lawfulness of the
minimum income requirement in principle. Litigation challenging the
lawfulness of the financial requirement had been ongoing since 2013.
•
•
•
In July 2013 the High Court did not strike down the Rules as
unlawful in general, but found that the way they are applied
would amount to a disproportionate interference with family life
in certain types of case.
In July 2014 the Court of Appeal allowed the Government’s appeal
against the High Court’s decision.
In May 2015, the Supreme Court granted permission to appeal
against the Court of Appeal’s decision. In its judgment of
22 February 2017 the Supreme Court held that the fact that the
minimum income requirement may cause hardship to many does
not render it unlawful.
4.1 High Court (July 2013)
Two British citizens and a refugee, who wished to sponsor their nonEEA national partners to join them in the UK but could not satisfy the
financial requirement, challenged the maintenance requirements
through judicial review.
Judgment was given in the High Court on 5 July 2013. 63 The Rules were
not found to be unlawfully discriminatory, for example against female
sponsors or those living outside London and the South-East. Nor were
they deemed to be unlawful on the grounds that they failed to make an
over-riding accommodation of the best interests of the child.
Furthermore, the court found that the Rules had legitimate aims (to
promote the economic and social welfare of the whole community,
facilitate integration, and provide clarity and transparency), and were
rationally connected with those. It determined that the Home Secretary
was justified in concluding that greater maintenance resources were
needed in pursuit of these aims than the Immigration Rules had
previously required.
It also recognised that there might be legitimate and proportionate
restrictions on the admission of foreign spouses, and that financial selfsufficiency of a foreign family is a legitimate consideration.
However, the court highlighted several features of the maintenance
requirements since July 2012 that led it to believe that that the scale of
the interference with British citizens’ rights is “very significant”. It
concluded that, when applied to cases sponsored by a British citizen or
refugee, the Immigration Rules relating to the £18,600 minimum income
63
R (on the application of MM & Others) v Secretary of State for the Home
Department [2013] EWHC 1900 (Admin)
Number 06724, 22 February 2017 24
requirement were so onerous as to be an “unjustified and
disproportionate” interference with a genuine spousal relationship:
123. Although there may be sound reasons in favour of some of
the individual requirements taken in isolation, I conclude that
when applied to either recognised refugees or British citizens the
combination of more than one of the following five features of
the rules to be so onerous in effect as to be an unjustified and
disproportionate interference with a genuine spousal relationship.
In particular that it likely to be the case where the minimum
income requirement is combined with one or more than one of
the other requirements discussed below. The consequences are
so excessive in impact as to be beyond a reasonable means of
giving effect to the legitimate aim.
124. The five features are:
i. The setting of the minimum income level to be provided
by the sponsor at above the £13,400 level identified by the
Migration Advisory Committee as the lowest maintenance
threshold under the benefits and net fiscal approach
(Conclusion 5.3). Such a level would be close to the adult
minimum wage for a 40 hour week. Further the claimants
have shown through by their experts that of the 422
occupations listed in the 2011 UK Earnings Index, only 301
were above the £18,600 threshold
ii. The requirement of £16,000 before savings can be said to
contribute to rectify an income shortfall.
iii. The use of a 30 month period for forward income
projection, as opposed to a twelve month period that
could be applied in a borderline case of ability to maintain.
iv. The disregard of even credible and reliable evidence of
undertakings of third party support effected by deed and
supported by evidence of ability to fund.
v. The disregard of the spouse's own earning capacity
during the thirty month period of initial entry.
Mr Justice Blake considered that there was a “wider margin of
appreciation” available to the Home Secretary in cases involving a nonEEA national sponsor, observing that case law has generally found that
there is no particular reason why non-EEA nationals’ preferred place of
residence must be facilitated by the Immigration Rules. However, the
position is different for refugees and British citizens. British citizens have
“a fundamental right of constitutional significance recognised by the
common law” to reside in their own country, which is interfered with if
their foreign spouse is excluded from the UK. Refugees are also in a
different position to other non-EEA nationals, since they are unable to
reside in their country of nationality, and are compelled to reside in a
host state.
The determination went on to suggest some “less intrusive” ways in
which a financial requirement might be applied:
25 The financial (minimum income) requirement for partner visas
147. There are a variety of less intrusive responses available. They
include:
i. reducing the minimum income required of the sponsor
alone to £13,500; or thereabouts;
ii. permitting any savings over the £1,000 that may be spent
on processing the application itself to be used to
supplement the income figure;
iii. permitting account to be taken of the earning capacity
of the spouse after entry or the satisfactorily supported
maintenance undertakings of third parties;
iv. reducing to twelve months the period for which the pre
estimate of financial viability is assessed.
However, the Rules were not struck down as unlawful in general, and
Mr Justice Blake noted that it was up to the Home Secretary to consider
whether to make changes in light of the judgment.
The Home Office immediately suspended consideration of applications
whilst it assessed the implications of the judgment. 64 It subsequently
appealed against the outcome. 65 A letter from Lord Taylor of Holbeach,
Home Office Minister, summarised the Government’s position:
... matters of public policy, including the detail of how the income
threshold should operate, are for the Government and Parliament
to determine, not the Courts. We also believe that the detailed
requirements of the policy, which reflect extensive consultation
and consideration, are proportionate to its aims. 66
Consideration of applications that fell for refusal solely because they did
not satisfy the financial requirement continued to be suspended
pending the outcome of the Home Office’s appeal. However,
processing continued as normal for applications that could satisfy the
financial requirement, or that fell for refusal for other reasons. 67
4.2 Court of Appeal (July 2014)
The Court of Appeal hearing took place over 4-5 March 2014 and
judgment was given on 11 July. 68 The Court of Appeal overturned the
High Court’s decision.
Its findings included the following points:
149. So the key question is: to what extent should the court
substitute its own view of what, as a general policy, is the
appropriate level of income for that rationally chosen as a matter
of policy by the executive, which is headed by ministers who are
64
65
66
67
68
UKBA update, ‘Minimum income threshold for family migrants’, 5 July 2013
UKBA update, ‘Minimum income threshold for family migrants’, 26 July 2013
Home Office, Letter from Lord Taylor of Holbeach to Baroness Hamwee, 5 August
2013, DEP2013-1434
UKBA update, ‘Minimum income threshold for family migrants’, 26 July 2013
R (on the application of MM (Lebanon)) v Secretary of State for the Home
Department [2014] EWCA Civ 985
Number 06724, 22 February 2017 26
democratically accountable? Blake J suggested, at [147], that there
were "less intrusive responses" that were available and he gave
examples. What he meant by this is that, in his view, these "less
intrusive responses" constituted what was "no more than
necessary" to accomplish the policy aim and, in his view,
constituted a fair balance between the rights of the individual and
the interests of the community. I appreciate that proportionality
has to be judged "objectively by the court". However, in making
this objective judgment appropriate weight has to be given to the
judgment of the Secretary of State, particularly where, as here,
she has acted on the results of independent research and wide
consultations.
(…)
151. I am very conscious of the evidence submitted by the
claimants to demonstrate how the new MIR will have an impact
on particular groups and, in particular, the evidence that only 301
occupations out of 422 listed in the 2011 UK Earnings data had
average annual earnings over £18,600. But, given the work that
was done on behalf of the Secretary of State to analyse the effect
of the immigration of non-EEA partners and dependent children
on the benefits system, the level of income needed to minimise
dependence on the state for families where non-EEA partners
enter the UK and what I regard as a rational conclusion on the link
between better income and greater chances of integration, my
conclusion is that the Secretary of State's judgment cannot be
impugned. She has discharged the burden of demonstrating that
the interference was both the minimum necessary and strikes a
fair balance between the interests of the groups concerned and
the community in general. Individuals will have different views on
what constitutes the minimum income requirements needed to
accomplish the stated policy aims. In my judgment it is not the
court's job to impose its own view unless, objectively judged, the
levels chosen are to be characterised as irrational, or inherently
unjust or inherently unfair. In my view they cannot be. 69
In a ‘news story’ published on GOV.UK on 11 July 2014, James
Brokenshire welcomed the determination and defended the minimum
income threshold:
We welcome those who wish to make a life in the UK with their
family, work hard and make a contribution, but family life must
not be established in the UK at the taxpayer’s expense and family
migrants must be able to integrate.
The minimum income threshold to sponsor family migrants is
delivering these objectives and this judgment recognises the
important public interest it serves. 70
69
70
R (on the application of MM (Lebanon)) v Secretary of State for the Home
Department [2014] EWCA Civ 985 (footnotes omitted)
Gov.uk, ‘Home Office wins judgment on minimum income threshold’, 11 July 2014
27 The financial (minimum income) requirement for partner visas
4.3 Supreme Court (February 2017)
The Supreme Court held the minimum income requirement to be
acceptable in principle. 71 However it ruled that the Immigration Rules
and the Immigration Directorate Instruction giving guidance to entry
clearance officers unlawfully fail to take proper account of the Secretary
of State’s duty under section 55 of the Borders, Citizenship and
Immigration Act 2009 to have regard to the need to safeguard and
promote the welfare of children when making decisions which affect
them.
The minimum income requirement in principle
The court recognised the hardship caused by the Rules:
80. There can be no doubt that the MIR has caused, and will
continue to cause, significant hardship to many thousands of
couples who have good reasons for wanting to make their lives
together in this country, and to their children. There are several
types of family, not illustrated in the cases before us, upon whom
the MIR will have a particularly harsh effect. These include British
citizens who have been living and working abroad, have married
or formed stable relationships there, and now wish to return to
their home country. Many of these relationships will have been
formed before the new Rules were introduced or even publicly
proposed. They also include couples who formed their
relationships before the changes in the Rules were introduced
and who had every expectation that the foreign partner would be
allowed to come here. Of particular concern is the impact upon
the children of these couples, many or even most of whom will be
British citizens themselves. These are illustrated in a Report
commissioned by the Office of the Children’s Commissioner for
England, Family Friendly: The Impact on Children of the Family
Migration Rules: A Review of the Financial Requirements (2015,
Middlesex University and the Joint Council for the Welfare of
Immigrants).
It accepted the minimum income requirement presents a “serious
obstacle” to couples enjoying family life together, and may constitute a
“permanent impediment” where a sponsor will never be able to earn
above the threshold and the couple will not be able to amass sufficient
savings to make good the shortfall. It also noted the difficulties
experienced by women and some minorities:
Female sponsors, who have constituted as many as a third of the
total, are disproportionately affected, because of the persisting
gender pay gap, as are sponsors from certain ethnic groups
whose earnings tend to be lower, and those from parts of the
country where wages are depressed. 72
71
72
R (on the application of MM (Lebanon)) v Secretary of State for the Home
Department [2017] UKSC 10
Ibid, paragraph 81
The Court acknowledged
that for some couples the
Rules would constitute a
permanent impediment
to their living together in
the UK
Number 06724, 22 February 2017 28
However the Court emphasised that the fact that a rule causes hardship
to many does not mean that it is incompatible with the European
Convention on Human Rights (ECHR) or otherwise unlawful at common
law.
The Court noted the minimum income requirement is part of the
Government’s overall strategy aimed at reducing net migration. It
described its particular aims - ensuring that couples do not have
recourse to welfare benefits and have sufficient resources to be able to
play a full part in British life - as “entirely legitimate”. It agreed with both
Mr Justice Blake and the Court of Appeal that those aims are sufficient
to justify the interference with, or lack of respect for, the right to family
life enshrined in article 8 ECHR.
Like the lower courts, the Supreme Court also rejected the argument
that there is no rational connection between those legitimate aims and
the particular minimum income threshold chosen:
The Court ruled that the
requirement was a
proportionate means of
achieving a legitimate aim:
reducing net migration
and ensuring that
migrants can support
themselves
The work of the Migration Advisory Committee is a model of
economic rationality. Even though it had to make certain
assumptions, it was careful to identify and rationalise these.
Making those assumptions, it arrived at an income figure above
which the couple would not have any recourse to welfare
benefits, including tax credits and housing benefits. That being a
legitimate aim, it is also not possible to say that a lesser threshold,
and thus a less intrusive measure, should have been adopted. 73
The treatment of children
The Court noted that Appendix FM to the Immigration Rules asserts at
paragraph GEN.1.1 that it takes into account the Secretary of State’s
duty under section 55 of the Borders, Citizenship and Immigration Act
2009 to have regard to the need to safeguard and promote the welfare
of children when making decisions which affect them. However it
described this statement as wrong in law. The Court found nothing in
the relevant section giving direct effect to the obligation.
Furthermore, the Court took the view that the Immigration Directorate
Instruction on family migration did not adequately fill the gap left by
the Rules, failing to treat the best interests of the children as a primary
consideration. 74 The Court found the guidance to be defective in this
respect and in need of amendment.
The Court granted a declaration that in this respect both the Rules and
Instructions are unlawful.
Treatment of alternative sources of funding
The Supreme Court also addressed the restrictions in the rules on
taking into account the prospective earnings of the foreign partner.
Whilst the Court accepted that “the application of the restrictions may
73
74
R (on the application of MM (Lebanon)) v Secretary of State for the Home
Department [2017] UKSC 10, paragraph 83
Ibid, paragraph 91
The Rules and
guidance are unlawful
to the extent that
they fail to give effect
to the Secretary of
State’s statutory
obligation
29 The financial (minimum income) requirement for partner visas
seem harsh and even capricious in some cases”, it noted that the
decision was not taken on a whim but had been the subject of careful
consideration by both the MAC and by the Secretary of State. The
restrictions reflected the relative uncertainty and difficulty of verification
of sources of alternative funds, and the decision to prioritise simplicity
of operation and ease of verification was not irrational.
Nevertheless, the Court held the “rigid restrictions” in the Rules were
inconstant with the ‘evaluative exercise’ required of restrictions imposed
on the right to family life enshrined in article 8 ECHR. The Court took
the view that a tribunal dealing with an appeal can judge for itself the
reliability of any alternative sources of finance claimed by a migrant and
his or her sponsor partner. The Court felt it makes little sense for
decision-makers at an earlier stage to be forced to take a narrower
approach.
Whilst this did not undermine the legality of the Rules as such, the
guidance for entry clearance officers ought to be amended to make
clear they are not precluded from taking account of other reliable
sources of earnings or finance. Whilst it is open to the Secretary of State
to indicate criteria by which the reliability of alternative sources may be
judged, she cannot exclude them altogether.
Whilst the Rules are
lawful in excluding
sources of funds other
than income, cases
considered on human
rights grounds require
much greater flexibility
in the assessment of
the reliability of such
sources
Next steps
The Home Office must respond to the judgment by amending the
Immigration Rules and issuing fresh guidance to address cases involving
children and assessment of alternative sources of funds.
The Supreme Court opted not to discuss remedies in its judgment,
adjourning the question “to allow time for the Secretary of State to
consider her position, and to indicate to the appellants and to the court
how she proposes to amend the instructions or other guidance to
accord with the law as indicated in this judgment.” Barrister Colin Yeo
suggests this places pressure on the Home Office to devise new rules
and guidance that are genuinely compliant. 75
75
Free Movement, ‘Supreme Court upholds Minimum Income Rule of £18,600 to
sponsor foreign spouses’, 22 February 2017
The Home Office
must now issue
amendments to the
Rules and guidance
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BRIEFING PAPER
Number 06724, 22 February
2017
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