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High Court finds minimum income rules disproportionate and unjustified

High Court finds minimum income rules disproportionate and unjustified

United by Love - Divided by Theresa May, JCWI Campaign
United by Love – Divided by Theresa May, JCWI Campaign
Almost exactly a year after they were first introduced, 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 refugee or a British citizen.

The case is MM & Ors v Secretary of State for the Home Department [2013] EWHC 1900 (Admin). At paragraph 126 Blake J holds as follows:

“…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.”

Blake J observes that British citizens have ‘a fundamental right of constitutional significance recognised by the common law’ to live in their home country but that for many applicants (estimated at around half the British population, in fact) if they wish to marry and live with a foreigner the rules require them to leave their own country. The consequences of this are considered by the Court to be so excessive in impact as to be beyond a reasonable means of giving effect to the legitimate aim behind the new rules.

Similarly, recognised refugees have not ‘chosen’ to live in the UK and make it their country of residence. They have been forced to leave their own country. To force a refugee to make a choice between marrying their partner of choice or leaving their country of refuge is simply unreasonable.

The absence of any flexibility in the scheme and five aggravating features of the rules contributed heavily to the court’s conclusion:

i. The setting of the minimum income level to be provided by the sponsor at above the £13,400 level identified by the Migration Advisory Committee as the lowest maintenance threshold under the benefits and net fiscal approach (Conclusion 5.3). Such a level would be close to the adult minimum wage for a 40 hour week. Further the claimants have shown through by their experts that of the 422 occupations listed in the 2011 UK Earnings Index, only 301 were above the £18,600 threshold[16].
ii. The requirement of £16,000 before savings can be said to contribute to rectify an income shortfall.
iii. The use of a 30 month period for forward income projection, as opposed to a twelve month period that could be applied in a borderline case of ability to maintain.
iv. 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.
v. The disregard of the spouse’s own earning capacity during the thirty month period of initial entry.

At paragraph 128 Blake J deals rather neatly with the argument that the level of income specified in the rules was derived from advice from the Government’s Migration Advisory Committee:

The Migration Advisory Committee were clear in their advice that they were providing statistics about the level at which any family would have no recourse to means tested benefits of any kind. They were thus professionals in ‘the dismal science’ of economics and not making an assessment of when it would be justified to prevent a British citizen or refugee from being joined by a spouse on economic grounds alone. Their economic advice cannot provide a sufficient justification for the terms in which the policy is set.

The court rejected the argument that the new rules were discriminatory in nature, also rejected the argument that the rules were unlawful because they failed to allow for any assessment of the best interests of affected children and in effect upheld the income rules with respect to foreign national sponsors settled in the UK by choice. Blake J declined to strike down the rules as generally unlawful: the judgment is in theory only concerned with the direct impact on the particular claimants in this case. Further, the judgment does not quibble with the principle that a specific minimum income rule is potentially lawful, and the judgment certainly does not open the door to those without means to sponsor spouses and children to come to the UK and claim public funds.

However, the reality is that many, many other applicants are British citizens or refugees with enough money so to avoid resorting to public funds but not enough to meet the £18,600 rule for a sponsor’s earnings. This judgment offers hope that they will soon be able to live with their loved ones in the United Kingdom.

No 5 Chambers have already posted up a piece on the judgment and outline its practical effect:

Although the court did not strike down the rules as such, its declaratory judgment is a green light to foreign spouses 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.

The list of potential ways of showing sufficient funds is derived from paragraph 147 of the judgment. Anyone previously refused and considering a fresh application or with an upcoming appeal who does not meet the terms of the current rules should aim to demonstrate as clearly as possible that their family income will satisfy these suggestions.

The judgment will come as a huge relief to the thousands of British and refugee families separated by these severe rules. It may even come as a relief to the Government, given the growing chorus of criticism in local and national media: what a result, to be able to look tough on immigration, blame the judges, escape the consequences of the policy and avoid the embarrassment of a climbdown.

Interestingly, there has been no knee-jerk condemnation of the judgment and the Home Office state they are pausing consideration of affected cases. This holds out at least a little hope that the Home Office will not actually appeal this one.

Colin Yeo
A barrister specialising in UK immigration law at Garden Court Chambers in London, I have been practising in immigration law for 15 years. I am passionate about immigration law and founded and edit the Free Movement immigration law blog.

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