Minimum income requirements foreign spouses and partners of persons settled in Britain

Late last week the UK’s Court of Appeal delivered its long awaited judgment in MM v Secretary of State for the Home Department [2014] EWCA Civ 985.  The case concerned the UK Home Office’s decision to introduce a minimum income requirements (“MIR”) for persons with Indefinite Leave to Remain or British Citizenship sponsoring non-EEA (European Economic Area) national spouses or partners to join them in the United Kingdom.  The Government had set the minimum income for the UK-based partner or spouse at a starting level of £18,600 (UK pounds), increasing in defined increments in certain cases where children were also being sponsored with the spouse or partner.   So, if a British citizen husband (for example) wants his new Indian wife to live with him in the UK he must satisfy the immigration rules across a number of requirements (his new wife must also satisfy English language requirements), and the controversial requirement is that the husband must be earning more than £18,600 per year from his employment and if he does not then he has to have significant savings (beyond the reach of most people) to supplement the income shortfall.

Migrants and campaigning groups challenged these new rules.  It is understood that 4,000 applications by spouses and partners abroad were put on hold; where they had failed to meet the MIR levels.

Last July (2013), we had received a positive judgment from Mr Justice Blake, in the High Court, allowing the challenge to the minimum income levels and  declaring the requirements unlawful.  Unfortunately, the Court of Appeal did not uphold Mr Justice Blake’s decision.

At paragraph 137 of the judgment, Lord Justice Aitkens held that:

“There is nothing in the 1971 Act or the common law that grants a “constitutional right” of British citizens to live in the UK with non-EEA partners who do not have the right of abode in the UK and who are currently living outside the UK. Of course, I accept that the UK partner (whether a UK citizen of a refugee or person with HP) is entitled to respect of his or her right to marry and to found a family. But those are not absolute rights; there is no absolute right to marry and found a family in the UK if it involves marriage to a non-EEA citizen who then wishes to reside in the UK.

The court considered the proportionality of the new MIR levels, and whilst it accepted that the requirements interfered with the migrant family’s right to a family life, as per Article 8 of the European Convention on Human Rights 1950, the court concluded that the Home Office had discharged the burden of showing that the interference was proportionate.  At paragraph 151, Lord Justice Aitkens held that:-

“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.”

As for the 4,000 applications on hold awaiting this judgment, the Home Office rushed to put a statement on its website indicating that it will now process those applications (in other  words refuse the applications) in light of the Court of Appeal’s judgment:

“The judgment will mean that, from the 28 July, the 4,000 individuals whose applications are currently on hold, pending this judgment, will now receive a decision. These are cases which met all the requirements apart from the minimum income threshold and now stand to be refused.”

The legal teams for the migrants in this important Court of Appeal case are now considering an appeal to the Supreme Court.  If an appeal is made and the Supreme Court does grant permission to appeal, it is unlikely that any hearing will take place before 2015.

Anyone affected by the judgment needs to get legal advice swiftly.  There are a number of ways to mitigate against the effect of the new income rules, and at least one other legal route that allow certain spouses to use European Union law to avoid the £18,600 MIR completely.

For more information on this, please contact our solicitors who would be happy to discuss your case.

Kieran O’Rourke
Partner
Howe+Co Solicitors – London

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