High Court Decision on minimum income limits for family Immigration

On 5th July, the High Court delivered its ruling on the Judicial Review challenge to the income threshold for those British nationals and those settled in the UK who wished to sponsor spouses or partners and children coming to the UK. Mr Justice Blake sitting in the High Court has in a lengthy, complex and very carefully considered judgment found that the controversial immigration rules requiring a minimum income of at least £18,600 for spouse visa applications are ‘unjustified and disproportionate’ where the sponsor is a British citizen. The case is MM & Ors v Secretary of State for the Home Department [2013] EWHC 1900 (Admin). At paragraph 126 :

“…to set the figure significantly higher than even the £13,400 gross annual wage effectively denies young people and many thousands of low-wage earners in full time employment the ability to be joined by their non-EEA spouses from abroad unless they happen to have wealthy relatives or to have won the lottery. This frustrates the right of refugees and British citizens to live with their chosen partner and found a family unless such modest earnings could be supplemented by any reasonably substantial savings, third party support or the future earnings or the spouse seeking admission. The executive can hardly be heard to say that the minimum adult wage is a manifestly inadequate sum to provide a basic standard of living over the subsistence threshold for a household without dependent children.”

Although the court did not strike down the rules as such, its declaratory judgment will enable those who previously thought they had no prospect of being allowed to live together with their spouses in the UK to apply for permission to enter. After this judgment, many are likely to succeed in being allowed to enter under Art 8 of the European Convention on Human Rights even though they cannot satisfy the harsh requirements of the rules especially if, for example, the UK sponsoring spouse earns above the national minimum wage, there is reliable ‘third party support’, there is reliable evidence that the foreign spouse or partner will be working in the UK, or where children are likely to be affected so that is not in their best interests for the foreign spouse to be refused entry.

In response, the Home Office have posted on their web site that -The Home Office has paused decision-making on some spouse/partner and child settlement visa and leave to remain applications to enable us to consider the implications of the judgment. 'We are looking closely at the judgment and its likely impact on the minimum income threshold before we decide how to respond. 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.'

http://www.ukba.homeoffice.gov.uk/sitecontent/newsarticles/2013/july/16-judgement