This week the Supreme Court upheld the Government's minimum income requirement for foreign spouses. The decision will be of particular relevance to organisations that have employees posted abroad, especially when considering their return to the UK. It is worth ensuring that any such employees are aware of the case and any impact it might have on their individual circumstances.
What is the case about?
The case concerns minimum income requirements (MIR) introduced in 2012 to be satisfied by the non-EEA applicants (and dependent children) wishing to join their spouse or civil partner in the UK. The MIR is intended to reduce net migration to the UK. The cases were originally brought before the level of the MIR was announced and challenged it in principle, arguing that it violated the right to respect for family life under Article 8 ECHR. The MIR was then set at £18,600 pa with additional sums for dependent children. Alternatively, cash savings of £62,000 (again with additional sums for children) satisfy the test. This level was set on the basis of a report by the Migration Advisory Committee which identified it as the point at which a family would not be entitled to any income-related benefits. After these levels were set, the challenges were broadened to attack the specific financial requirements of the MIR on Article 8 grounds, as the MAC had identified £13,400 as the lowest possible threshold, which was close to the national minimum wage at the time.
The Rules also prevent the prospective earnings of the spouse in the UK and any third party support to be taken into account towards satisfying the MIR. This means that wealthy individuals cannot subsidise their family or friends by contributing to their maintenance in the UK.
What was decided in the lower courts?
The Supreme Court heard a number of linked appeals. However, the main cases were heard at first instance by Blake J, in which he declined to strike down the Rules introducing the MIR but went on to find that a number of features of the Rules were so onerous as to be an unjustified and disproportionate interference with a genuine spousal relationship, and found that these features went further than necessary to promote the legitimate aim of the MIR. However, these findings were all rejected in the Court of Appeal.
The Supreme Court's judgment
The Supreme Court rejected the argument that the MIR in principle violated Article 8, even though it accepted that it may cause hardship to many, and the level of the MIR. Unless the case is taken to the European Court of Human Rights, the MIR is therefore here to stay.
However, the decision does not represent a total defeat for the appellants. Firstly, the Secretary of State has a duty under s55 of the Borders, Citizenship and Immigration Act 2009 to have regard to the need to safeguard and promote the welfare of children when making decisions which affect them. The Court found that the Immigration Rules asserted that the Secretary of State's s55 duty had been taken into account but did nothing to give effect to this. Furthermore, the Instructions failed to treat the best interests of children as a primary consideration. The Rules and Instructions were both declared to be unlawful.
Furthermore, the Court found that the prohibition on prospective income of the spouse and third party support, whilst not rendering the Rules in themselves irrational, would be difficult to justify outside the Rules under the Human Rights Act. The Court found that the Instructions to Entry Clearance Officers needed to be amended to ensure that they make their decisions in accordance with their duties under the Human Rights Act, in particular by not precluding them from taking account of other reliable sources of earnings of finance. The Court left it to the Secretary of State whether it might be more efficient simply to revise the Rules themselves.
The Home Office will be pleased that the MIR has been upheld in principle. It may also now feel empowered to raise the financial requirements for the first time since their introduction in 2012. The case illustrates how immigration law is becoming increasingly harsh on families, who may include British citizens seeking to return to the UK with their non-EEA families after working abroad. It is also worth bearing in mind that these requirements may apply to EEA nationals after the UK leaves the EU.
However, the findings on s55 and alternative financial support could potentially significantly mitigate the effects of the MIR. It is noteworthy that these constituted two of the five elements that led Blake J to find that the MIR went further than necessary to achieve its aims. Clearly the Court envisages that more weight needs to be given to the interests of children. Moreover, skilled foreign spouses and partners of British citizens who are able to show they will be able to secure employment here, and those fortunate enough to have wealthy relatives, may now be able to succeed in joining their partners in the UK, at least on appeal to the First-tier Tribunal (which can hear appeals on human rights grounds), if not on initial application to the Secretary of State.