Updated House of Commons Library report on the financial (minimum income) requirement for partner visas

The House of Commons Library has updated its report on the financial (minimum income) requirement for partner visas.

The update comes in the wake of the High Court judgment on July 11th allowing the Secretary of State's appeal against MM, R (On the Application Of) v The Secretary of State for the Home Department [2013] EWHC 1900 (Admin). See here for more on that judgment.

The House of Commons Library published an in-depth report on the financial (minimum income) requirement for partner visas in March and you can access it in full on EIN here.

It has proved to be an extremely popular and much visited page on EIN so we've published the updated report from yesterday in full below:

____________________________

HOUSE OF COMMONS LIBRARY

The financial (minimum income) requirement for partner visas

Standard Note: SN/HA/06724

Last updated: 17 July 2014

Author: Melanie Gower

Section: Home Affairs Section

This information is provided to Members of Parliament in support of their parliamentary duties and is not intended to address the specific circumstances of any particular individual. It should not be relied upon as being up to date; the law or policies may have changed since it was last updated; and it should not be relied upon as legal or professional advice or as a substitute for it. A suitably qualified professional should be consulted if specific advice or information is required.

This information is provided subject to our general terms and conditions which are available online or may be provided on request in hard copy. Authors are available to discuss the content of this briefing with Members and their staff, but not with the general public.

In July 2012 controversial new maintenance funds requirements were introduced for spouse/partner visas (affecting non-EEA national partners of British citizens, refugees and people settled in the UK).

In effect, these require visa applicants to have available funds equivalent to a minimum gross annual income of £18,600 (or higher in cases including non-EEA national dependent children). In many cases only the British/settled sponsor's employment income can be considered, because the non-EEA national's employment can only be taken into account if they are already in the UK with permission to work.

Various migrants' rights groups are campaigning against the financial requirement, which they consider to be unfair, disproportionate and counter-productive to the Government's intentions. In June 2013 a report by members of the APPG on Migration called for an independent review of the requirement and its impact.

The Government has made some minor adjustments to the policy, but overall is satisfied that it is operating as intended. It considers that the maintenance rules ensure that families are able to support themselves and the migrant partner's integration without being a burden on the general taxpayer.

The lawfulness of the rules has been challenged in the courts. In July 2013 the High Court found that certain factors in the way the financial requirement is applied represent a very significant interference with British citizens' and refugees' rights. It suggested some alternative ways of applying a financial requirement. However, on 11 July 2014 the Court of Appeal overturned the High Court's decision, following an appeal brought by the Government.

It is possible that a further appeal will be made to the Supreme Court. In the meantime, the minimum income requirement remains in force. UK Visas and Immigration are resuming consideration of applications that had been put on hold pending the outcome of the Court of Appeal case.

Contents
1 What are the financial (minimum income) rules?
1.1 Overview of the maintenance requirements before and after 9 July 2012
1.2 Summary of the rationale for the minimum income requirement
1.3 July 2012: Initial reactions to the policy
2 How the Rules are applied
2.1 Practical guidance for applicants
2.2 The scope for exemptions
Why don't the Rules affect European migrants?
2.3 Ways of satisfying the minimum income requirement
2.4 Some common criticisms of the rules, and counter-arguments
3 Opposition to the minimum income requirement
3.1 June 2013: APPG on Migration's inquiry into the impact of the new Rules
The Government's response: willing to consider some minor changes
4 Legal challenges
4.1 July 2013: High Court
4.2 Court of Appeal: July 2014
4.3 What happens next?

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]

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.

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 With reference to Income Support levels (in effect requiring a post-tax income of £5,500 per year).	Must demonstrate available maintenance funds equivalent to an income of at least £18,600 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: - 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)	Only income sources and evidence specified in the Immigration Rules can be taken into account, for example: - 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.
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.

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) contribute to the Government's objective to reduce net migration levels from hundreds of thousands to tens of thousands. [3] However the Government has emphasised other policy objectives in explaining the rationale behind the minimum income requirement.

The Government considers 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] It changed the maintenance requirements because it did not consider that the rules in place before July 2012 were sufficient for these objectives.

The minimum income threshold was set at £18,600 after the Government had 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 weekly rent of £100). [6] The Government has said that it intends 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 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 the Home Secretary's oral statement on 11 June 2012, Yvette Cooper, Shadow Home Secretary, said that 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 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 MP 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, etc.

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 threshold 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 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 British Council 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 compared the UK's partner visa rules with those in place in other countries, and concluded that "The UK is slowly becoming one of the least favourable places for non-EU residents and even its own citizens to reunite with their families." It 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]

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.

However, the minimum income requirement does not apply if the UK-based sponsor is in receipt of the following benefits:

• Disability Living Allowance; Severe Disablement Allowance, Industrial Injuries Disablement Benefit, Personal Independence Payment, Attendance Allowance, or Carer's Allowance.

Instead, they 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 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 non-Armed 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]

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 the latest 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] Chris Bryant, then Shadow Immigration Minister, also described the difference between EU law and the UK's Immigration Rules as a "significant loophole" and suggested that it requires "concerted EU action". [30]

Although the UK is an EU Member State, EEA citizens are not generally considered to be exercising 'free movement' rights granted by European law whilst they are living in their own country, and therefore their non-EEA family members cannot join them using the provisions in EU free movement law. 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 as a worker or self-employed person in another EU Member State but then wishes to return to their country of nationality with their family member. [31] In these circumstances the 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 national immigration law. [32]

There is anecdotal evidence to suggest that some British citizens - particularly those who cannot satisfy the UK's visa requirements - are deciding to temporarily live and work in another EU Member State, in order to be able to return to the UK with their non-EU partner under European law instead of applying for a visa under the Immigration Rules. [33]

In December 2013 the Government amended the regulations transposing the Free Movement of Persons Directive into UK law, by requiring that the British citizen had transferred the "centre of their life" to another Member State in order to benefit from Singh. [34] The 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.

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 has posted some commentary on the change. [35]

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.

• 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. [36]

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:

o have been so continuously for the previous six months or

o 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:

o 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

o 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:

• £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 [37]

Some changes have been made to the Immigration Rules and policy guidance, in response to calls for greater flexibility. [38] 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.

2.4 Some common criticisms of the rules, and counter-arguments [39]

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 Government has said that £18,600 is the income level at which a couple generally cease to be eligible for income-related benefits. Its 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 are in receipt of certain welfare benefits and therefore exempt from the requirement, or if they and their partner have appropriate sources of non-employment income, or if they increase their working hours or skills in order to earn a higher income.

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. [40]

The MAC's report to the Government did not consider these arguments in detail, but said that it did not see a clear case for differentiation. [41] The Government shares the MAC's concerns. It believes that a single national threshold provides clarity and simplicity for applicants and Home Office staff. It has 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 Government also argues 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 is 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 Government has 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 Government has argued that offers of third party support are vulnerable to changes in circumstances or relationships. Furthermore, it argues that employment overseas, employment prospects in the UK or promises of employment are no guarantee to getting a job. It has suggested that if a migrant partner has a confirmed job offer in the UK, they could apply under Tier 2 of the points-based system instead, although it has acknowledged that the eligibility criteria for Tier 2 visas would rule this out in some cases. It also argues that there are some permitted income sources which allow the migrant partner's non-employment income to be taken into account.

It has 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 rules have argued that they undermine the Government's objectives to promote self-sufficiency and family unity. For example, if a British citizen returns to the UK to find a job at the appropriate minimum income threshold, they 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 has argued that the 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. [42] The Government does not accept these conclusions. [43]

3 Opposition to the minimum income requirement

Various civil society organisations are campaigning 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. [44]

3.1 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 [45] published a report of their inquiry into the impact of the family migration rules changes. [46] 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. [47]

The report recommended that the Government commission 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". [48] The 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. [49]

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 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." [50] 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. [51]

The 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. [52] A similar debate took place in the House of Lords on 4 July 2013. [53]

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.

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. [54]

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. [55]

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. [56] The changes also included allowing sponsors returning to work in the UK to count future on-target earnings towards the financial requirement.

4 Legal challenges

4.1 July 2013: High Court

Two British citizens and a refugee, who wish to sponsor their non-EEA national partners to join them in the UK but cannot satisfy the financial requirement, have challenged the maintenance requirements through judicial review.

Judgment was given in the High Court on 5 July 2013. [57] 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 self-sufficiency 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 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 non-EEA 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:

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. [58] It subsequently appealed against the outcome. [59] 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. [60]

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. [61]

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. [62] 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 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. [63]

In a 'news story' published on GOV.UK on 11 July, James Brokenshire, Immigration and Security Minister, 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. [64]

4.3 What happens next?

The £18,600 minimum income requirement remains in force, and consideration of the cases that had been put on hold pending the Court of Appeal determination – thought to be around 4,000 – will resume. [65]

An update posted on the website of No5 Chambers (some of whose barristers were instructed in the appeals) discusses the possibility of a further appeal to the Supreme Court:

The Court of Appeal has held that the requirements are lawful. The court reached this conclusion essentially on the basis that it was not for the court to analyse the basis of the Secretary of State's decision to introduce such requirements into the immigration rules which are merely statements of administrative policy. The test adopted by the court is the same as that which it adopted in Bibi [2013] EWCA Civ 322 (the case concerning the English language requirement), namely that it is enough that the Secretary of State should have a 'rational belief' that the policy embodied in the requirements will achieve the identified aim. This is an extremely restrained form of judicial review and suggests a lack of willingness to interfere with governmental decisions. This test seems to conflict with the approach adopted by the Supreme Court in cases such as Baiai [2008] UKHL 53 and Quila [2011] UKSC 45 where the court adopted a rigorous analysis in assessing the evidence and used a test requiring the Secretary of State to show an objective justification.

The Supreme Court has already granted permission to appeal in Bibi on arguments which include the argument that the test of a mere rational belief is wrong. It is likely that the present case will also proceed to the Supreme Court. Whereas Mr Justice Blake's decision had properly considered the detailed evidence provided by the claimants' lawyers, the Court of Appeal barely considered it. [66]

The update goes on to consider the possible implications of the Court of Appeal's determination for applicants who cannot satisfy the financial requirement. In particular, it notes that there remains scope to successfully argue individual cases under Article 8 of the European Convention on Human Rights (right to private and family life):

Applicants may however still succeed under Article 8 of the European Convention of Human Rights even if they cannot satisfy the minimum income requirements under the rules. (…)

The Court of Appeal did not treat the rules on minimum income requirements as constituting a complete code for Article 8 purposes such that there was no need to consider article 8 separately. Indeed, that was not the Secretary of State's position. The Court of Appeal also noted the Guidance which had initially been produced in a draft form (only on the fourth day of the hearing before Mr Justice Blake) and the Guidance which had then been promulgated in final form after that hearing. That final Guidance directs caseworkers first to consider applications under the rules and, if the applicant does not meet the requirement of the rules, to move onto a second stage. Under that second stage caseworkers are required to consider "whether, based on an overall consideration of the facts of the case, there are exceptional circumstances which mean refusal of the application would result in unjustifiably harsh consequences for the individual or their family such that refusal would not be proportionate under Article 8. If there are such exceptional circumstances, leave outside the rules should be granted, if not, the application should be refused".

(End)

© Parliamentary copyright

[66] No5 Chambers, 'Court of Appeal rules on family migration and the minimum income requirement', 11 June 2014