The highest court in the land has ruled that a minimum income threshold restricting the ability of non-European Economic Area nationals to enter the UK is lawful, despite acknowledging that the requirement causes significant hardship for thousands of couples.
In a judgment handed down today, the Supreme Court said the fact that a rule causes hardship to many did not necessarily mean it was unlawful. It said the threshold was rationally connected to the government’s legitimate aim of ensuring that a couple had sufficient resources to play a full part in British life without recourse to benefits.
The immigration rules were amended in 2012 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 (MIR) of at least £18,600 a year with additional sums for dependent children, to be satisfied by the sponsoring spouse or civil partner.
The judgment states: ‘There can be no doubt that the MIR has caused, and will continue to cause, significant hardship to many thousands of couples who have good reasons for wanting to make their lives together in this country, and to their children.’
However, the court was not satisfied that the current rules and guidance were flexible enough in exceptional circumstances where article 8 of the European Convention on Human Rights requires entry to be granted where the minimum threshold is not met. The Gazette has been told the Home Office is placing a temporary hold on applications that do not meet the minimum threshold while it considers these issues.
Stuart McWilliams, senior associate in the immigration team at Scottish firm Morton Fraser, said today’s judgment will lead to further uncertainty for individuals affected by the £18,600 threshold.
McWilliams said: ‘The group most likely to benefit from any amendments are applicants with children who are currently separated from a parent due to the financial requirement.
‘In these cases we can expect decision-makers to be given a discretion to consider a wider range of factors, including offers of financial support from friends and family members. There is still no guarantee of success for these families and specialist advice will be required to ensure the best chance of success.’
David Starr, solicitor in the employment and immigration team at London and St Albans firm SA Law, said the ruling ‘offers possible hope to families and children, and we await to see how the Home Office responds to the suggestion that the rule and instructions be amended’.
A Home Office spokesperson said: ‘The court has endorsed our approach in setting an income threshold for family migration that prevents burdens on the taxpayer and ensures migrant families can integrate into our communities. This is central to building an immigration system that works in the national interest.
‘The current rules remain in force but we are 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.’