Today (22 February 2017), the Supreme Court has ruled that the UK Government's £18,600 minimum income requirement for foreign spouses (plus additional sums for dependent children) is in principle lawful.
Minimum Income Requirement
To sponsor a non-EEA spouse, fiancé or unmarried partner, the British citizen or settled person in the UK (the sponsor) must have a gross annual income of at least £18,600, with an additional £3,800 for the first dependent child and £2,400 for each further child.
Under these rules, only the sponsor's earnings are to be taken into account. The prospective earnings of a spouse/fiancé/partner and any support from third parties such as family members are not taken into consideration.
Alternatively, if the sponsor is unable to meet the financial requirement from income, the couple would need to have substantial savings of £16,000 plus two and a half times the shortfall in the sponsor's earnings. Essentially, someone with no income would need savings of £62,000 in cash.
Four cases before the Supreme Court challenged the £18,600 financial requirement for spouse visas under Articles 8, 12 and 14 of the European Convention on Human Rights.
One of those cases concerned a 37 year old Lebanese national (MM). MM entered the UK in 2001 as a refugee. In 2010 he got engaged to a Lebanese woman and got married by proxy in Lebanon in 2013. Whilst in the UK, he is completing a PhD at the University of Wolverhampton and earns £15,600 gross per annum as a quality inspector. His wife is employed as a pharmacist in Lebanon and speaks fluent English.
Despite the likelihood of MM's wife finding skilled employment in the UK and financial support from family members, MM and his wife were unable to live together in the UK because they do not meet the financial requirement. MM and his wife cannot live together in Lebanon because, as a refugee, he has a well-founded fear of persecution there and there is no other country in which they have a right to reside.
MM argued that their inability to live together in the UK was an unjustified interference with his Article 8 right to respect for his family life.
MM's nephew, aged 16, was included as an interested party to MM's claim because of the adverse impact upon him of MM's difficulties in achieving family unity in the UK. They argued that this was a breach of the Secretary of State's duty, under section 55 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 that will affect them.
Supreme Court Judgment
Despite acknowledging that the minimum income requirement causes significant hardship to many thousands of couples, the Supreme Court held that this does not in itself render the requirement unlawful.
The Court held that the income requirement has the legitimate aim of ensuring that a couple living in Britain do not have recourse to welfare benefits and have sufficient resources to play a full part in British life. Additionally, the Supreme Court pointed out that the income threshold was accepted in principle by the European Court of Human Rights.
However, the Supreme Court's ruling criticises the lack of focus on the treatment of children and the ability of Home Office staff to consider alternative assets when they assess the earning ability of the sponsor. The Court ruled that current Home Office rules and guidance are defective and should be amended to give more weight to the interests of the children involved.
Following the ruling, the current rules remain in force but the Home Office has confirmed that "it is carefully considering what the court has said in relation to exceptional cases where the income threshold has not been met, particularly where the case involves a child". Therefore, the Court's ruling may give limited hope to some separated families with children.