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A long-awaited judgment by the Supreme Court has dashed the hopes of migrant and British spouses struggling with the UK’s minimum income requirements (MIR).

The UK’s highest court said the income requirements for UK-based partners to earn at least £18,600 before they can bring a foreign spouse into the country is lawful.

The judgment of 22 February 2017 marks an end to a lengthy legal challenge launched in 2012, when the divisive visa income requirements first became law, turning decades of immigration practice on its head.

The Supreme Court recognised the MIR would bring hardship to many families but said this did not make it unlawful in principle. It said the MIR served a legitimate aim of ensuring families do not rely on benefits and were able to play a full part in British life.

It said the MIR was not contrary to human rights law because if immigration officials decide the MIR is not met, they are then meant to consider whether it would breach a family’s human rights to refuse the application.

However, the Supreme Court said the Home Office should make it clear to immigration officials considering this specific type of case that “alternative sources of funding” could be taken into account.  Examples given by the Supreme Court of “alternative sources of funding” include the prospective earnings of the foreign spouse or guarantees of third party support.

The Supreme Court suggested it was up to the Home Office whether it chose to incorporate such changes in the Immigration Rules or the guidance followed by immigration officials.

Immigration law income requirements image

The Supreme Court also said the guidance and Immigration Rules failed to take proper account of the Home Office’s obligation to safeguard the welfare of children. It said the Home Office needed to take steps to resolve this issue.

The reality is however, that the impact of the Supreme Court judgment is likely to be fairly minimal at this stage.

The introduction of the MIR nearly five years ago was a shock to many of us working in the field and I was among those who was convinced at the time that the MIR would eventually be found to be unlawful.

However, since the 2014 Court of Appeal decision in the government’s favour, the Home Office has pushed ahead with the program and the MIR is now business as usual, unfortunately.

I still believe the MIR is unfair and unjust. I have known at least two cases where couples were separated by the requirement, including a pensioner, who had no way to increase his earnings.

I also believe the number of cases where immigration officials have actually approved an entry clearance application on human rights grounds where the MIR is not met is likely to be vanishingly rare.

However, as the years have passed, we have mostly become used to it and couples are usually able to find a way to make it work – albeit often with a much longer period of separation than before.

The minimum income requirements, introduced in July 2012, requires the UK-based spouse to be earning at least £18,600, rising to £22,400 for families with a child with a further £2,400 required for each additional child.

A complex calculation allows applicants to make up the shortfall with savings but discounts all savings under £16,000.

Until now, third party support cannot be taken into account under any circumstances and one of the most controversial aspects of the scheme has been that the prospective earnings of the foreign spouse must be disregarded.

To see how we can assist you please contact the Immigration team on 020 7631 4141.

This article originally appeared on the Fisher Meredith website in February 2017.

 

Karma Hickman Associate Solicitor   +44 (0)20 7091 2879


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