A Supreme Court Ruling

Minimum Income Threshold – Supreme Court Provides Some Families With Hope
By Oshin Shahiean

Yesterday the UK Supreme Court upheld the controversial minimum income threshold required by the sponsors of non-EEA spouses, partners, and their children. The failure to strike down the threshold was met with dismay by campaigners and many of those whose lives have been in limbo while waiting for the court’s decision. However, although the Supreme Court ruled that the minimum income threshold was acceptable “in principle,” it made strong suggestions that two particular elements of the Immigration Rules, Appendix FM, which governs the minimum income threshold, and the guidance provided to entry clearance officers, be amended.

The specific aspects of the minimum income threshold that the learned judges felt it necessary to qualify were:

  • the treatment of children; and
  • the treatment of alternative sources of funding

Last night the Law Society Gazette reported that the Home Office had suspended any applications which may be refused because the UK sponsoring partner does not meet the minimum income threshold while they consider the court’s decision.

Saira Grant, chief executive of the Joint Council for the Welfare of Immigrants, described the judgment as a "real victory for families especially those with children."

The Minimum Income Threshold

If a UK citizen or settled person wishes to bring their spouse, civil partner, unmarried partner, or fiancé to Britain, they must be earning a minimum of £18,600 per year and have maintained that income for at least six months. A further £3,800 is required for one dependent child and £2,400 for each additional child.

According to reports, there is a significant percentage of couples who cannot meet this threshold, especially if they have children. Whilst the Office of National Statistics report that median full-time gross earnings in the UK were £26,500, this is heavily skewed by incomes in London and the South-East, where workers earn considerably more than those residing in other areas of the country. There are also large discrepancies between the earnings of men and women. Someone earning the minimum wage would take home around £14,500 per year, well below the minimum income threshold. As such, this requirement, which was introduced in 2012 has been controversial from the start. Prime Minister, Theresa May, who was Home Secretary at the time, has been accused of creating a generation of ‘Skype families,' whose only contact with one of their parents is via the internet.

The qualifications laid down in the Supreme Court’s decision

There are two major aspects of the minimum income threshold the court believed required reform; children and alternative sources of funding.

Children

The United Kingdom is a signatory to the UN Convention on the Rights of the Child which states that ratifying states must put the interests of the child first in any public policy. In addition, section 55 of the Borders, Citizenship and Immigration Act 2009 places a duty on entry clearance officers to consider the best interests of the child when making immigration decisions. Currently, entry clearance officers can only waive the minimum threshold requirements in the best interests of the child in ‘exceptional circumstances.' The threshold for this is exceptionally high and is usually only applied to cases where the child is undergoing significant medical treatment or will face abandonment if the minimum income threshold is applied.

The seven judges of the Supreme Court agreed unanimously that neither the Immigration Rules nor the guidance given to entry clearance officers gave enough weight to the best interests of the child and this needed to be changed.

Alternative sources of funding

Under the current Immigration Rules and guidance, no alternative sources of funding such as assets, third-party backing or the earning potential of the incoming spouse can be considered by entry clearance officers when assessing whether the minimum income requirement has been met. The Supreme Court disagreed with this approach and recommended that the rules and the guidance be amended so in certain circumstances, particularly when failing to do so would contravene the Human Rights Act, alternative sources of funding should be taken into account.

Where to now for Americans who want to come to the UK with their spouse or partner?

We know of many couples who have delayed submitting their applications for a UK Spouse, Fiancé or Unmarried Partner Visa in anticipation of yesterday’s decision. Some will be disappointed, but for many, especially those with children or alternative sources of funding, the Supreme Court has provided a ray of hope.

Unfortunately, with all Home Office decisions relating to the minimum income threshold being suspended until the details of the judgment have been examined, families will be left in limbo for a little while longer yet.

But at least, for some, there is now a prospect of a successful outcome and the reunification of their family.

Oshin Shahiean is the Managing Partner at OTS Solicitors, specialists in immigration, employment, and civil litigation law www.otssolicitors.co.uk

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