The Supreme Court has today unanimously ruled that the Home Office’s requirement that a UK citizen must have a minimum annual salary of £18,600 to be able to sponsor their non-EEA national partner’s application to join them in the UK is lawful.
This judgment was the result of an appeal by four affected couples who claimed the ‘Minimum Income Requirement’ (MIR) was a breach of their right to family life enshrined in Article 8 of the European Convention on Human Rights.
The MIR was introduced in 2012 and must be met by nationals of non-EEA countries applying to join their British partners in the UK. The MIR is increased by £3,800 if a non-British child is included in the application and increased by a further £2,400 for each additional child. Only the income of the British citizen will be considered and cannot be combined with the income of the partner. Applicants do have the option to rely on cash savings of the British citizen sponsor but these must be substantial, at least £16,000 plus 2.5 times the difference between the sponsor’s salary and £18,600.
Despite acknowledging that the MIR was beyond the reach of many UK citizens, including many who “provide essential public services”, the Court has held that the MIR is “in principle acceptable” and is not itself unlawful. It forms part of the Government’s “legitimate” strategy to ensure such couples “do not have recourse to welfare benefits and have sufficient resources to be able to play a full part in British life”.
Although the MIR itself is lawful (and is therefore likely to remain in place) the Court did find that it is unlawful for the Home Office to only take into account the income and savings of the British citizen. While it is possible to make this clear in guidance, the Court has recommended that the Immigration Rules should also be amended to require case workers to take into account “other reliable sources of income and finance”. This would include income of the applicant and the promised support of the couple’s friends and family, so potentially making it easier for couples to meet the MIR.
In addition, the Court has held that the rules do not have sufficient regard to the interests of children affected by these types of applications. While Entry Clearance Officers have a statutory duty to have regard to the best interests and welfare of children when coming to a decision, the Court has held that the current rules do not enable this and should be amended to give greater clarity.
The Court has left it to the Home Secretary to propose changes to the Immigration Rules and it remains to be seen when and how these changes will be implemented. In the meantime applicants will need to continue to meet the MIR based solely on the income and/or savings of their British citizen partner.
It is important to note that British citizens are unable to rely on their European freedom of movement rights in respect of these applications and their family members have no option but to meet the requirements of the Immigration Rules. Family members of EEA nationals are not subject to a minimum income threshold. It is unclear whether this position will change once the UK leaves the EU, but it does present an opportunity for the government to treat the family members of British citizens more favourably than other categories of migrants while still meeting its net migration target.