22 February 2017 #Immigration
This morning, the UK’s highest court has unanimously ruled that the minimum income threshold introduced by Theresa May in 2012, is lawful. The measure that British spouses must earn more than £18,600 before they can bring non-European spouses to the UK, will therefore remain in place.
However, the Supreme Court ruling does acknowledge that the financial requirement rule has caused hardship for thousands and has criticised the lack of focus on the treatment of children and the ability of Home Office staff to consider alternative assets when they assess the earning ability of the British spouse.
In July 2012, the Immigration Rules were amended to establish new entry requirements for non-EEA applicants to join their spouses or civil partners in the UK. These included a minimum income requirement of at least £18,600 per annum with additional sums for dependent children, to be satisfied by the sponsoring spouse or civil partner.
Since the amendment, critics have argued that the rule was "obstructing family reunions for tens of thousands of people" and that it breached human rights legislation. The Joint Council for the Welfare of Immigrants (JCWI) stated that it was estimated in 2015, that 41% of the British working population and 55% of British women, earned less than £18,600. This would mean many British spouses were unable to sponsor their partners and were unable to reunite with them in the UK.
Previous legal action
In July 2013, Justice Blake, a High Court Judge ruled that the introduction of the minimum income requirement was an unjustified interference with human rights. At the time, he said that the financial requirements amounted to a "disproportionate interference with a genuine spousal relationship".
However, the government appealed this ruling and the lawfulness of the minimum income threshold under the financial requirement was upheld by the Court of Appeal in its 11 July 2014 judgment in MM & Others  EWCA Civ 985.
Court of Appeal judges had said that the Home Secretary had struck "a fair balance" after analysing the effect of the immigration of non-EEA partners and dependent children on the benefits system and "the link between better income and greater chances of integration".
However, a number of people who were affected by the rule appealed against the decision and took their cases to the Supreme Court – which ruled today.
Supreme Court Appeal – the Judgment
The 7 Supreme Court justices, this morning, unanimously held that the minimum income threshold is acceptable in principle but the immigration rules and the Immigration Directorate Instructions on family migration unlawfully fail to take proper account of the s 55 duty (the need to safeguard and promote the welfare of children in the UK).
The Supreme Court Justices also required that the Immigration Directorate Instructions on family migration (which give instructions to UKVI case workers) require an amendment to allow consideration of alternative sources of funding when evaluating a claim under Article 8.
The full judgment can be read here.
Although the minimum income threshold has been held lawful, immigration welfare campaigners have taken comfort in the Supreme Court’s finding that the rule was causing hardship to thousands of families and that the interests of children needed to be reconsidered.
Speaking after the ruling, a Home Office spokesman told the Telegraph that he Home Office would be “carefully considering what the court has said in relation to exceptional cases where the income threshold has not been met, particularly where the case involves a child."
Our immigration solicitors will continue to provide immigration updates.