Spouse Visa Minimum Income Threshold unjustified says High Court
Recent changes to the Immigration Rules affecting British citizens who want their spouses to join them in this country from abroad were described as “onerous” and “unjustified” by a High Court judge on Friday 5th July 2013. The three cases challenged the requirements of the Immigration Rules, as introduced since 12th July 2012, for British spouses to prove that they have a minimum income of at least £18,600 per year, before they are allowed to bring their non-UK spouse to the UK to live.
Mr Justice Blake ruled that although it would not be appropriate to “strike down” the financial requirements set out in rules laid before Parliament in July last year, he concluded that they amounted to a “disproportionate interference with a genuine spousal relationship“.
The judge identified what he said “might be a proportionate financial requirement” in such cases, announced in a lengthy written ruling: “It will be for the Secretary of State if she sees fit to make such adjustments to the rules as will meet the observations in this judgment.”
Mr Justice Blake handed down his judgement in three judicial review applications brought by two British citizens who are resident in the Birmingham area, and a “recognised refugee”, relating to amendments made to the Immigration Rules, which include a mandatory requirement that a sponsor has a minimum gross income of at least £18,600.
The judge said the central question in the challenge was whether the “minimum income provisions of the maintenance rules when applied to sponsors who are British citizens or refugees whose incomes and savings combined do not meet them are a disproportionate interference with the right to respect for family life“.
Although there may be sound reasons in favour of some of the individual requirements “taken in isolation”, he had concluded that – when applied to either “recognised refugees” or British citizens – the combination of more than one of five requirements of the rules was “so onerous in effect as to be an unjustified and disproportionate interference with a genuine spousal relationship“.
He said the Home Secretary’s justification for the new rule was “transparency and improvement of ease of assessment“.
The judge ruled: “In my judgment, the aim of transparency cannot justify an agglomeration of measures that cumulatively very severely restrict the ability of many law abiding and decent citizens of this nation who happen not to earn substantial incomes in their employment from living with their spouses in the land of their nationality.” He said that he had found it a “challenging case”, adding: “It represents in an acute form the tensions between the competing calls for judicial respect for sensitive issues of policy making by the democratically accountable executive and judicial scrutiny with an appropriate degree of intensity of rules that affect the enjoyment of a fundamental human right.”
Mr Justice Blake said that in reaching his conclusions he had understood and given weight “to the wide discretionary area of judgment open to the Secretary of State in making economic and social judgments in the context of immigration”.
He also recognised that the £18,600 figure was the lower of two options identified by the Migration Advisory Committee and further accepted that the policy aim was to identify a figure “above mere subsistence and from which future recourse to any form of benefit would be made impossible for all practical purposes”.
The judge said: “I further recognise that Parliament must have been aware of the minimum income figure when expressing its satisfaction with the Secretary of State’s policies.”
But, the learned Judge stated, the sum “effectively denies” young people and many thousands of low wage earners in full-time employment the ability to be joined by their spouses “unless they happen to have wealthy relatives or to have won the lottery”.
Mr Justice Blake stated that he considered the “most striking feature of the scheme” to be the “disregard of the spouse’s own earning capacity during the 30-month period of initial entry“.
He said: “To prevent a couple from having any regard to the future earning capacity of the spouse to be admitted for the first 30 months of the residence strikes me as both irrational and manifestly disproportionate in its impact on the ability for the spouses to live together.”
There was a variety of “less intrusive” means of safeguarding the economic welfare of the UK, including reducing the minimum income required of the sponsor to around £13,000 and permitting account to be taken of the earning capacity of the spouse after entry “on the satisfactorily supported maintenance undertakings of third parties”.
The Home Secretary was given permission to appeal against the ruling.
The Home Office was quick to place a brief and non-descriptive statement on their website stating: “Our family changes were brought in to make sure that spouses coming to live in the UK would not become reliant on the taxpayer for financial support and would be able to integrate effectively. We’re pleased that this judgment supports the basis of our approach. We are looking closely at the judgment and its likely impact on the minimum income threshold before we decide how to respond. In the meantime, where an applicant does not meet the minimum income threshold and there is no other reason to refuse it, the application will be put on hold.”