High Court Rules Against UK Home Office on Family Income

Requiring UK sponsors to meet a higher income requirement than what the Migration Advisory Committee has set "amounted to disproportionate interference with family life."

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High Court Rules Against UK Home Office on Family Income
Written by Crispin Aranda.
Posted on August 1, 2013

High Court ruling on family migration and the minimum income threshold

UK Home Office to Family Sponsorships – No money, no honey.

UK High Court to UK Home Office – No dice.

A year and 4 days after the UK Border Agency (now simply UK Home Office) imposed a rule increasing the level of income of a person sponsoring a spouse or partner to the UK, the High Court ruled on 5 July 2013 that “the earnings threshold amounted to a disproportionate interference with family life.”

Increased Level of Income

Until the UK Border Agency (now defunct) issued the ruling for family sponsorships, a UK citizen or settled in the UK could bring the spouse, partner, and any non-EEA dependent children to the UK to join the sponsor.  To ensure that the reunited UK Family could support themselves without using public funds, the income threshold – recommended by the Migration Advisory Committee – was at above £13,400.

The new threshold is set at £18,600 per year. The rules also specify which types of income can be included and how these can be evidenced. The increased income requirement resulted in families separated, unable to live in the UK for failure to meet the financial requirements.

Affected sponsors and families sought judicial review of the new family rules on the basis that the rules breached their right to private and family life under Article 8 of the European Convention on Human Rights.

Decision as published

“Mr Justice Blake had no difficulty in finding that the new rules interfered with the claimants’ human rights. Indeed, he found the interference to be greater than immigration rules which had previously been struck down for setting a minimum age for international couples marrying in the UK. He also emphasised the “indefeasible right of the British national to reside in […] her own country” and noted that, if the non-EEA spouse cannot obtain residence in the UK under the rules, the British national would have to leave the UK to enjoy family life. He said that such interference requires “compelling justification”.

Being a human rights case, the main issue was therefore whether there was such justification.

Justice Blake identified five features of the new rules that, when taken together, went beyond what could be justified. These were:

  • the setting of the minimum income level to be provided by the sponsor at above £13,400;
  • the requirement of at least £16,000 of savings before such savings could contribute to rectify an income shortfall;
  • the use of a 30-month period for forward income projection, as opposed to a 12-month period which could be applied in a borderline case of ability to maintain;
  • 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; and
  • the disregard of the foreign spouse’s own earning capacity during the 30-month period of initial entry.  

In relation to the first of these factors, Justice Blake noted that the Migration Advisory Committee (MAC) had stated that £13,400 was the lowest level of income that was appropriate under their preferred method of calculation. He also noted that this is close to the adult minimum wage for a 40-hour week. A threshold of £18,600 therefore excludes a large proportion of the population.

Justice Blake was also particularly critical of the fifth of these factors, which he found to be irrational. This is because the whole policy is geared towards the income needs of a family of two people, yet the policy deliberately fails to take into account the earning capacity of both people.

What happens next

Permission to appeal has been granted, and the cases are likely to proceed to the Court of Appeal. The Home Office has in the meantime responded by announcing that, where an applicant does not meet the minimum income threshold and there is no other reason to refuse it, the application will be put on hold. How long these applications will remain on hold is not yet known.

UK Home Office Appeals High Court Decision

26 July 2013

The Home Office today, 26 July 2013, filed its appeal against a High Court judgment on the minimum income threshold for spouses/partners and children applying in the family route.

The judgment affects non-EEA national spouses/partners and children applying to settle in the UK with someone who is already resident here.

Decisions to be on hold

The Home Office will continue to put on hold decisions in some spouse/partner and child settlement visa and leave to remain applications until the case is finally determined by the Courts.

A Home Office spokesperson said:

'Our family changes were brought in to make sure that spouses coming to live in the UK would not become reliant on the taxpayer for financial support and would be able to integrate effectively. We are pleased that the High Court judgment of 5 July supports the basis of our approach.

'However, we believe matters of public policy, including the detail of how the minimum income threshold should operate, are for the Government and Parliament to determine, not the Courts. We also believe the detailed requirements of the policy are proportionate to its aims. We are therefore pursuing an appeal against the judgment.

'We have asked the Court of Appeal to expedite this. In the meantime, where an applicant does not meet the minimum income threshold and there is no other reason to refuse it, the application will be put on hold.'

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About the Author

Crispin Aranda

Crispin Aranda

Crispin R. Aranda is an established International Visa Conselor and Immigrant Advocate. He is the president of IVC and is in several migration radio programs.

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