Updated House of Commons Library briefing on the financial (minimum income) requirement for partner visas

Following yesterday's Supreme Court judgment in the case of MM (Lebanon) and Others on the minimum income requirement for non-EEA partner visas (see here for details), the House of Commons Library has updated its briefing paper on the issue.

Earlier copies of the briefing on EIN (see here) have proved to be very popular and useful resources for our readers so we've reproduced yesterday's updated briefing in full below.

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HOUSE OF COMMONS LIBRARY

BRIEFING PAPER
Number 06724, 22 February 2017

The financial (minimum income) requirement for partner visas

By Melanie Gower and Terry McGuinness

Inside:
1. What are the financial (minimum income) rules?
2. How the Rules are applied
3. Opposition to the minimum income requirement
4. Legal challenges

www.parliament.uk/commons-library | intranet.parliament.uk/commons-library | papers@parliament.uk | @commonslibrary

Cover page image copyright: Marriage I by 19Melissa68. Licensed under CC BY 2.0 / image cropped.

Contents
Summary
1. What are the financial (minimum income) rules?
1.1 Overview of the maintenance requirements before and after 9 July 2012
1.2 Summary of the rationale for the minimum income requirement
1.3 July 2012: Initial reactions to the policy
2. How the Rules are applied
2.1 Practical guidance for applicants
2.2 The scope for exemptions
Why don't the Rules affect European migrants?
2.3 Ways of satisfying the minimum income requirement
3. Opposition to the minimum income requirement
3.1 Some common criticisms of the Rules, and counter-arguments
3.2 June 2013: APPG on Migration's inquiry into the impact of the new Rules
3.3 The current Government's view
4. Legal challenges
4.1 High Court (July 2013)
4.2 Court of Appeal (July 2014)
4.3 Supreme Court (February 2017)

Summary

In July 2012 the Immigration Rules were amended to require non-EEA national applicants to meet a financial, minimum-income requirement in order to secure a visa to join a spouse or partner in the UK. The sponsoring spouse or partner is required to show a minimum gross annual income (or equivalent in cash savings) of £18,600. A higher amount is required when visas are also sought for non-EEA national dependent children.

A visa applicant's own employment income can only be taken into account if they are already in the UK with permission to work.

The Coalition Government argued that these requirements ensure families are able to support themselves and manage the migrant partner's integration into the UK without being a burden on the general taxpayer.

Various migrants' rights groups consider the minimum income requirement to be unfair, disproportionate and counter-productive. For example, they argue that certain demographics, such as young people, women, and those living outside of London and the south east, are particularly affected due to differences in salaries.

In June 2013 a report by members of the APPG on Migration called for an independent review of the requirement and its impact. A 2015 comparison of immigration policies across 38 developed states concluded that the UK's immigration policies are the least 'family-friendly', in part due to the minimum income requirement.

The Coalition Government made some minor adjustments to the policy, but was satisfied overall that it operated as intended. The current Conservative Government also takes the view that the income requirement supports integration and prevents a burden being placed on the taxpayer. The Labour party, the SNP, the Liberal Democrats and the Green party have all expressed support for a review of the requirement.

The lawfulness of the Rules was challenged in the courts. On 22 February 2017 the Supreme Court handed down its judgment. It held the minimum income requirement is acceptable in principle. However it found that the Rules and the Immigration Directorate Instruction giving guidance to entry clearance officers unlawfully fail to take proper account 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 which affect them. The Court also held that the rules and guidance need to be amended to take proper account of other possible sources of income and third-party financial support.

1. What are the financial (minimum income) rules?

The Immigration Rules requirements for leave to enter/remain as the non-EEA [1] national partner (spouse, fiancé(e), civil partner, prospective civil partner, unmarried or same-sex partner) or dependent child of a British citizen or person who has Indefinite Leave, Refugee Status or Humanitarian Protection in the UK changed on 9 July 2012, as part of a broader package of changes to the Immigration Rules for family members. [2]

One of the most significant changes was the introduction of a financial (minimum income) threshold in order to satisfy a requirement to have adequate maintenance funds in place.

1.1 Overview of the maintenance requirements before and after 9 July 2012

Before 9 July 2012	Since 9 July 2012
Must demonstrate ability to adequately accommodate and maintain the applicant without recourse to public funds With reference to Income Support levels (in effect requiring a post-tax income of £5,500 per year).	Must demonstrate available maintenance funds equivalent to an income of at least £18,600 per year (plus an extra £3,800 for one dependent child and extra £2,400 for each additional child).
A variety of income sources could be considered, for example: Sponsor and/or migrant partner's employment overseas and employment prospects in the UK Evidence of sufficient independent means Support from third parties (such as family members)	Only income sources and evidence specified in the Immigration Rules can be taken into account, for example: Sponsor's earnings in the UK, or sponsor's overseas earnings and confirmed job offer in the UK Migrant spouses' employment income (if they are in the UK with permission to work) Migrant spouse's overseas employment income or offers of employment in the UK, and offers of third party support cannot be taken into account.
The requirement was relevant when applying for temporary leave to remain (after a two year probationary period, the migrant partner could apply for Indefinite Leave to Remain).	The requirement must be satisfied at two application stages (during a five year probationary period), and when applying for Indefinite Leave to Remain.

Before and after July 2012, people who come to the UK as partners of British citizens/ permanent residents have not been able to access most benefits, tax credits or state housing assistance, due to a 'no recourse to public funds' visa condition.

1.2 Summary of the rationale for the minimum income requirement

The changes to the family migration rules (including the introduction of the minimum income requirement) were introduced to further the Coalition Government's objective of reducing net migration levels from hundreds of thousands to tens of thousands. [3] However the Coalition Government emphasised other policy objectives in explaining the rationale behind the minimum income requirement.

Ministers considered that family migrants and their British-based sponsors should have sufficient financial resources to be able to support themselves and enable the migrant to participate in society without being a burden on the general taxpayer. [4] The Government changed the maintenance requirements because it did not consider that the Immigration Rules in place before July 2012 were sufficient for these objectives.

The minimum income threshold was set at £18,600 after the Coalition considered advice from its Migration Advisory Committee (MAC). [5] The MAC had recommended a minimum gross sponsor income threshold of between £18,600 and £25,700 per year to sponsor a partner. The different thresholds reflected different approaches to calculating "burden on the state". The MAC estimated that around 45% of applicants would fall short of the lower threshold amount and 64% of applicants would not satisfy the upper threshold. The MAC emphasised that its recommendations were purely based on economic considerations, and did not take into account wider legal, social or moral issues related to family migration.

The MAC had identified £18,600 as the level of annual gross pay at which a couple would not receive income-related benefits (assuming weekly rent of £100). [6] The Coalition Government said that it intended to review the level of the financial requirement annually, and that it may be affected by the roll-out of Universal Credit. [7]

The higher income requirement for sponsoring a child is intended to reflect "the education and other costs arising in such cases". [8] It applies at each application stage until the migrant partner is granted permanent settlement, even if the dependent child turns 18 before this time (unless they have been granted an immigration status in their own right). [9] It applies to biological children, step-children and adopted children (in certain circumstances), and children coming for the purpose of adoption who are subject to immigration control and applying for limited leave to enter or remain under Appendix FM or the relevant paragraphs of Part 8 of the Immigration Rules.

The minimum income requirement does not apply in respect of applications from a child who:

• Is a British citizen (including an adopted child who acquires British citizenship);

• Is an EEA national (except where a non-EEA spouse or partner is being accompanied or joined by the EEA child of a former relationship who does not have a right to be admitted to the UK under the Immigration (EEA) Regulations 2006);

• Is settled in the UK or qualifies for indefinite leave to enter; or

• Qualifies in a category under Part 8 or Appendix Armed Forces of the Immigration Rules which is not subject to the financial requirement. [10]

1.3 July 2012: Initial reactions to the policy

In Parliament

Responding to then Home Secretary Theresa May's oral statement on 11 June 2012, Yvette Cooper, then Shadow Home Secretary, said Labour supported strengthening the family immigration rules to protect UK taxpayers. However, she cast doubt on the effectiveness of the Government's approach:

We agree that stronger safeguards are needed for the taxpayer on family migration. If people want to make this country their home, they should contribute and not be a burden on public funds, but it is not clear that the best way to protect the taxpayer is to focus solely on the sponsor's salary. For example, in the current economic climate, someone on £40,000 today could lose

their job next month, and then, of course, there is no way to protect the taxpayer. The system does not take account of the foreign partner's income, which might have a differential impact on women. Will the Home Secretary explain why the Government ruled out consulting on a bond that could have been used to protect the taxpayer if someone needed public funds later on? [11]

In response, the Home Secretary said that a bond "would only be available to those people who had capital and were able to put up a bond in the first place." [12]

There was a mixed response from backbench Members to the Home Secretary's statement. Some welcomed the changes, expressing hopes that they will tackle public concerns about migrants' (lack of) integration, 'sham marriages', and a lack of public confidence in the immigration system. [13]

Others were more critical. Several Members highlighted examples of constituency cases that would be unable to satisfy the minimum income threshold and raised concerns that certain groups would be disproportionately affected, such as young people, ethnic minorities, women and people living in low-pay areas. [14] Fiona MacTaggart described the financial requirement as a "means test on family life", and contrasted it with the Government's previously-stated "family-friendly" intentions. [15]

NGOs, think-tanks, academia

Initial responses to the July 2012 changes from various migrants' rights and civil liberties organisations raised concerns that they would undermine, rather than enhance, migrant family members' prospects for integration.

Several highlighted particular concerns about the minimum income requirement and the effect it was likely to have on groups more likely to be in low-paid employment. The Family Immigration Alliance, a forum for British/ settled partners with experiences of sponsoring partners' applications, described the minimum income requirement as "an act of obscene discrimination", and argued that a precedent had been set "where finance extends beyond your quality of life, into your freedom to have a family at all." [16]

The Migrants' Rights Network warned that the changes would "introduce additional hurdles and costs for people, particularly lower earners" and were likely "to be viewed more widely as unfair as their impacts on both migrants and British people are realised". [17]

The Migrant Integration Policy Index (MIPEX) project, which is led by the Barcelona Centre for International Relations and the Migration Policy Group think-tank, runs an interactive website comparing migrants' integration opportunities. It is based on analysis of immigration policies in over 30 countries. A July 2012 blog post written by one of its Research Co-ordinators cautioned that the minimum income requirement might undermine migrants' integration prospects:

A high income threshold does not effectively promote long-term economic participation, education, language learning, or fighting forced marriages. Instead, such requirements have a disproportionate impact on limiting the number of family reunions, especially for low-income and vulnerable groups. For many, family life becomes harder or impossible through 'enforced separation.' The OECD finds that every extra year that child spends in country of origin and not in country of destination has a negative impact on their language learning and societal adjustment. The OECD's conclusion is that family reunion should be facilitated as soon as possible. British policy actors must strictly scrutinise whether the new family reunion requirements exacerbate some of the very problems that they are supposed to address. [18]

On the other hand, Migration Watch issued a brief statement welcoming the changes, which it considered would enhance family migrants' prospects for integration. [19]

2. How the Rules are applied

2.1 Practical guidance for applicants

The content (and format) of the Immigration Rules for family members of British/settled persons who wish to join them in the UK are complex. They are spread between Part 8 and Appendix FM and FM-SE of the Immigration Rules. Paragraphs A277 - A279 of the Immigration Rules set out which parts of the Rules apply to pre- and post- 9 July 2012 spouse/fiancé(e)/partner visa applicants.

The 'Family visas' section on the GOV.UK website has general information for non-EEA nationals about applying to join or remain in the UK with a British/settled partner. It also links to the detailed policy guidance about the financial requirement and other eligibility criteria which is used by UK Visas and Immigration (UKVI) caseworkers when deciding applications. [20]

The Immigration Law Practitioner's Association has produced several information sheets on the changes to the family migration rules and related developments. As always, constituents seeking advice specific to their circumstances should consult a suitably qualified professional. The website of the Office of the Immigration Services Commissioner explains about the regulation of immigration advisers and includes a useful online 'adviser finder'.

2.2 The scope for exemptions

People granted leave to remain in a family immigration category before 9 July 2012 remain covered by the Immigration Rules in force prior to that date. They are not subject to the minimum income requirement. [21]

For applications submitted on or after 9 July 2012, there is no scope to make exceptions to the minimum income requirement where the Immigration Rules require that it is satisfied. It applies when the migrant is first applying for temporary immigration leave to remain as a family member, when they apply to renew their temporary immigration status, and after five years, when they become eligible to apply for Indefinite Leave to Remain.

However, the minimum income requirement does not apply if the UK-based sponsor is in receipt of the following benefits:

• Disability Living Allowance; Severe Disablement Allowance, Industrial Injuries Disablement Benefit, Personal Independence Payment, Attendance Allowance, or Carer's Allowance.

Instead, the sponsor must demonstrate that they have "adequate maintenance" funds in place, in line with the pre- July 2012 requirements. [22] However, the minimum income requirement will apply in subsequent applications if the sponsor's circumstances have changed. In March 2013 the Coalition Government confirmed that a review of the exemptions for sponsors who are disabled or carers was ongoing and would be concluded 'shortly', and that affected persons should not assume that the exemption would necessarily remain after April 2013. [23] However these exemptions remain in place to date.

Applications sponsored by a member of HM Armed Forces personnel were initially exempt from the minimum income requirement and continued to be assessed against the pre-9 July 2012 Immigration Rules requirements. [24] However, they became subject to the minimum income requirement on 1 December 2013. [25] The main difference with non-Armed Forces cases is that partners in Armed Forces cases are initially given leave to remain for five years (rather than two and a half years as is the case for civilian cases). This affects the way in which the couple's cash savings are calculated, if they choose to rely on such savings in order to meet the minimum income requirement.

People in receipt of certain payments related to service in HM Armed Forces (under the Armed Forces Compensation Scheme or War Pensions Scheme) are exempt from the minimum income requirement. [26]

Why don't the Rules affect European migrants?

The rights of EU/EEA (hereafter, EEA) [27] nationals and their family members to come to the UK derive from European law (specifically, Directive 2004/38/EC, often referred to as the Citizens' Directive or 'Free Movement of Persons' Directive) . [28] For as long as the UK remains an EU Member State it is subject to laws guaranteeing EEA nationals the right to free movement throughout the Union.

Non-EEA nationals, including family members of British citizens, are subject to the UK's Immigration Rules. The Immigration Rules do not have to mirror European law, and indeed it has long been the case that they have contained more restrictive eligibility criteria for family members than European law. The financial requirement is another example of such a difference - EU law does not specify a minimum income or specific level of resources that the EEA national must have in order for their non-EEA family member to join them in the host Member State. Migration Watch has called for financial eligibility criteria to be applied to non-EEA national family members of EU citizens living in the UK in a similar way as is the case under the Immigration Rules. [29]

European law does not consider EEA nationals to be exercising their 'free movement' rights whilst they are living in their own country. Therefore non-EEA family members of EEA nationals cannot rely on EU free movement law to join and live with their loved ones in Europe.

However, following the European Court of Justice's decision in the 'Surinder Singh' case, an exception is made if the EEA citizen has been exercising their free movement rights in another EU Member State but then wishes to return to their country of nationality with their family member. [30] In those circumstances a non-EEA national spouse may be treated as the family member of an EEA citizen in accordance with EU free movement law, rather than being subject to the country's own national immigration law. [31]

The UK only applies this 'Surinder Singh route' to non-EEA nationals whose British citizen relatives exercised their free movement rights as a worker or self-employed person.

There is anecdotal evidence to suggest that some British citizens - particularly those who cannot satisfy the visa requirements under the Immigration Rules - opted to live and work in another EU Member State temporarily, in order to be able to return to the UK with their non-EEA partner under European law instead of applying for a visa under the Immigration Rules. [32]

In December 2013 the Coalition Government amended the regulations transposing the Free Movement of Persons Directive into UK law, to require a British citizen to have transferred the "centre of their life" to another Member State in order for a non-EEA partner to avail of the 'Surinder Singh route'. [33] The accompanying Explanatory Memorandum to the SI explained:

7.11 (...) Whether or not a British citizen has transferred the centre of their life to another member State will be assessed by reference to a number of criteria, including the length of residence, the degree of integration and whether or not the British citizen has moved their principal residence to that other member State.

The changes were made "in order to ensure that there has been a genuine and effective use of free movement rights in the other Member State before such rights may apply by analogy upon return to the UK." One of the intended effects was "preventing abuse by those British citizens who move temporarily to another member State in order to circumvent the requirements of the usual immigration rules for their family members upon return to the UK." The EU Rights Clinic at the University of Kent posted some commentary on the change on its blog. [34]

There were reports that the European Commission was investigating the UK's interpretation of the Free Movement of Persons Directive and related case law, noting that the Directive does not specify a requirement to have transferred the "centre of one's life" to the host Member State. [35]

Appearing before the Home Affairs Select Committee in February 2015, James Brokenshire, then Immigration Minister, acknowledged that the minimum income restrictions limited the rights of British nationals, while other EU nationals were unaffected:

"[…] it is something we are concerned about in relation to settlement and marriage and the difference of application that is applied. I do not find that acceptable and it is something that needs to be addressed." [36]

2.3 Ways of satisfying the minimum income requirement

Only income from sources that are specified in Appendix FM-SE of the Immigration Rules can be considered when assessing whether an application satisfies the minimum income requirement. The Home Office's policy guidance on the financial requirement summarises the five acceptable income sources:

Income from salaried or non-salaried employment of the partner (and/or the applicant if they are in the UK with permission to work). This is referred to as Category A or Category B, depending on the employment history. See section 5 of this guidance.

Non-employment income, e.g. income from property rental or dividends from shares. This is referred to as Category C. See section 6 of this guidance.

Cash savings of the applicant's partner and/or the applicant, above £16,000, held by the partner and/or the applicant for at least 6 months and under their control. This is referred to as Category D. See section 7 of this guidance.

State (UK or foreign) or private pension of the applicant's partner and/or the applicant. This is referred to as Category E. See section 8 of this guidance.

Income from self-employment, and income as a director of a specified limited company in the UK, of the partner (and/or the applicant if they are in the UK with permission to work). This is referred to as Category F or Category G, depending on which financial year(s) is or are being relied upon. See section 9 of this guidance. [37]

Various combinations of these sources are allowed in order to meet the minimum income requirement, however certain combinations are not. For example, cash savings can be combined with income from salaried and non-salaried employment in certain circumstances, but they cannot be combined with income from self-employment.

There are specific criteria attached to each of these permitted income sources. For example, as the descriptions for categories A and B indicate, the migrant applicant's employment income can only be taken into account once they are in the UK with permission to work - their overseas employment income, or prospective earnings from a job offer in the UK, will not be considered. Therefore, only the sponsor (i.e. the British/settled partner)'s employment income is considered if the applicant is not already living and working in the UK.

Furthermore,

• If the sponsor is in the UK and relying on their employment income, they must be in employment at the point of application (with a gross annual salary which meets the financial requirement alone or combined with other permitted sources) and either:

─ have been so continuously for the previous six months or

─ if employed for less than six months, have also received over the previous 12 months the level of income required through gross salaried income and/or other permitted sources.

• If the sponsor has been living overseas and is returning to the UK with the applicant, they must have a verifiable job offer or signed contract of employment to start work within three months of their return (with an annual salary which is sufficient to meet the financial requirement on its own or in conjunction with other permitted sources). They must also either:

─ be in employment overseas at the point of application (with a gross annual salary which meets the financial requirement alone or in combination with other permitted sources) and have been so continuously for at least the previous six months; or

─ have received the level of income required over the previous 12 months through gross salaried income and/or other permitted sources.

The Immigration Rules and associated policy guidance also specify what pieces of evidence must be submitted in order to demonstrate income from each of the permitted sources. For example, an application relying on income from salaried employment must provide:

• Wage slips covering 6 or 12 months prior to the date of the application (depending on the length of employment); and

• A letter from the employer(s) who issued the wage slips, confirming the person's employment and gross annual salary; the length of their employment; the period over which they have been or were paid the level of salary relied upon in the application; and the type of employment (permanent, fixed-term contract or agency); and

• Personal bank statements corresponding to the same period(s) as the wage slips, showing that the salary has been paid into an account in the name of the person or in the name of the person and their partner jointly.

The guidance states that in addition, P60(s) for the relevant period(s) of employment (if issued) and a signed contract(s) of employment may also be submitted or requested by the decision-maker, in respect of paid employment in the UK.

If cash savings are being relied on to satisfy the minimum income requirement, they must have been held by the applicant, their partner or both jointly and under their control, and for at least the six months prior to the date of application. The first £16,000 in cash savings are not taken into account. This is because £16,000 is the level at which a person generally ceases to be eligible for income-related benefits.

When applying for temporary leave to remain, the amount of cash savings that can be counted towards the income requirement is calculated by dividing the amount of savings over £16,000 by 2.5 (this is equivalent to the number of years of temporary leave being applied for). When applying for Indefinite Leave to Remain (after five years), all cash savings over £16,000 can be considered.

In practice, therefore, when applying for temporary leave as a partner:

• £62,500 in cash savings is required if no other income sources are being used to meet the income requirement: (62,500-16,000) / 2.5 = 18,600

• £17,500 in cash savings is required if the sponsor's income is £18,000, in order to make up the £600 shortfall: (17,500-16,000) / 2.5 = 600 [38]

Some changes have been made to the Immigration Rules and policy guidance, in response to calls for greater flexibility. [39] For example, some flexibility was introduced about the length of time that cash savings arising from the realisation of an asset must be held, and it has been confirmed that academic stipends or maintenance grants can be counted as income. It has also been confirmed that caseworkers have the discretion to contact applicants to request further information or documentation before making a decision on the application.

3. Opposition to the minimum income requirement

Various civil society organisations have campaigned against the minimum income requirement – see, for example, the websites of the Joint Council for the Welfare of Immigrants, Migrants' Rights Network, BritCits and the Family Immigration Alliance.

Perhaps unsurprisingly, given its impact on British citizens across the UK, the minimum income requirement has also attracted considerable interest amongst Parliamentarians. Parliamentary Questions are often asked about the income requirement, and an Early Day Motion in the 2014-15 session, which called for the requirement to be applied with more flexibility, attracted 52 signatures.

3.1 Some common criticisms of the Rules, and counter-arguments [40]

Is the threshold set too high?

UKVI (previously UKBA) case file analysis cited in the Home Office's Impact Assessment suggested that around 45% of sponsors sampled were not in employment or earned less that £18,600 per annum. It also noted that the Annual Survey for Hourly Earnings indicated that around 40 - 45% of UK residents earn less than £18,600. The minimum wage for a 40 hour week for workers over 21 is currently equivalent to £13,124 per annum. The Coalition Government said that £18,600 is the income level at which a couple generally cease to be eligible for income-related benefits. The Impact Assessment suggested that a proportion of people earning less than this would still be eligible to sponsor a partner visa - for example, if they were in receipt of certain welfare benefits and therefore exempt from the requirement, or if they and their partner had appropriate sources of non-employment income, or if they increased their working hours or skills in order to earn a higher income.

The financial requirement has been cited as one of the reasons why the UK is now considered to have the least 'family-friendly' immigration policies in the developed world, according to the 2015 Migrant Integration Policy Index. [41]

Does the policy discriminate against particular demographic groups?

The University of Oxford's Migration Observatory analysed which demographic groups are most affected by the minimum income requirements, using data from the Labour Force Survey. The research found that the minimum income requirement "has important indirect effects across gender, ethnicity, education, age and place of residence." [42]

The research found that while 28% of British males working as employees did not earn enough to sponsor a non-EEA spouse, this rose to 57% for their female counterparts. The minimum income requirement "hits some ethnic groups harder than others", according to the same research. While 43% of "white" employees did not earn enough to sponsor a non-EEA spouse, this rose to 51% for "non white" employees. Young people were hit "particularly hard" by the policy, with the research finding that "60% of British nationals in their 20s were unlikely to earn enough to sponsor a non EEA spouse.

The Migration Observatory's research also found "noticeable disparities across educational levels". While 24% of British employees who had completed higher education or a degree did not earn enough to sponsor a non-EEA spouse, this rose to 76% of those who had no academic qualifications. [43]

Should the income threshold take regional differences into account?

Some have argued that there should be variable income thresholds to reflect differences in wages and living costs across the UK (and overseas). Research published in June 2014 by the Migrants' Rights Network, which opposes the minimum income requirement, found 74 parliamentary constituencies where the £18,600 income requirement was higher than the earnings of 50% or more of all residents in employment. [44] The Migration Observatory's research showed that while only 30% of British employees in London did not earn enough to sponsor a non EEA spouse, this rose to 49% for those in Yorkshire and Humberside, and 51% for those in Northern Ireland. [45]

The MAC's report to the Coalition Government did not consider these arguments in detail, but said that it did not see a clear case for differentiation. [46] The Coalition shared the MAC's concerns. It believed that a single national threshold provided clarity and simplicity for applicants and Home Office staff. It also pointed out that the benefit system is not regionalised (with the exception of housing benefits) in spite of regional differences in wages and costs of living. The Coalition Government also argued that regional thresholds would be difficult to enforce, since there would be a risk that some sponsors would temporarily move to an area with a lower income threshold until the visa had been granted. Another concern was that families who had to move for other reasons, or who lived in a relatively poor part of an affluent region (or vice versa) might be unfairly dis/advantaged by differential thresholds.

Are the evidential requirements unduly restrictive?

Although the Coalition Government made some minor adjustments to the Rules since July 2012, critics have highlighted examples of inflexibility in the way in which the minimum income threshold is assessed. For example, there is no scope to reduce or waive the minimum income threshold if a couple has reduced costs of living due to offers of third-party support (such as accommodation provided by relatives), or to take into account an applicant's high earnings overseas or job offers in the UK, or cash savings below £16,000 or which have not been held for six months.

The Coalition Government argued that offers of third party support are vulnerable to changes in circumstances or relationships. Furthermore, it argued that employment overseas, employment prospects in the UK or promises of employment were no guarantee to getting a job. It suggested that if a migrant partner had a confirmed job offer in the UK, they could apply under Tier 2 of the points-based system instead, although it acknowledged that the eligibility criteria for Tier 2 visas would rule this out in some cases. It also argued that there are some permitted income sources which allow the migrant partner's non-employment income to be taken into account.

It said that at least six months' evidence of cash savings is necessary in order to ensure that the funds are genuinely under the couple's control and not the product of a short-term loan, and that it is reasonable to expect applicants to organise their finances in accordance with the requirements of the Immigration Rules.

Is the minimum income requirement saving money or leading to unforeseen costs?

Some families affected by the changes to the Rules argued that they undermined the Coalition Government's objectives to promote self-sufficiency and family unity. For example, if a British citizen returns to the UK to find a job at the appropriate minimum income threshold, they will need to work for at least six months before they can sponsor the application. There have been accounts of families enduring prolonged periods of separation due to not being able to satisfy the minimum income requirement. It has also been argued that some families have needed recourse to public funds, which would not have been necessary if the migrant partner was able to join them in the UK and share the sponsor's work and caring responsibilities.

The Home Office's Impact Assessment estimated the minimum income requirement would bring an overall net benefit of £660million over ten years. This estimate included consideration of the reduction in direct tax revenue from working migrant partners, and savings in healthcare, education and welfare.

Middlesex University argued that the Coalition Government did not take into account the loss of the wider economic benefits of migrant partners' economic activity. Using an alternative model for calculations based on the figures in the Government's Impact Assessment, it has suggested that the changes could cost the UK £850million over ten years. [47] The Coalition did not accept these conclusions. [48]

3.2 June 2013: APPG on Migration's inquiry into the impact of the new Rules

In June 2013 a committee of members of the All-Party Parliamentary Group (APPG) on Migrationa report of their inquiry into the impact of the family migration rules changes. [49] published [50] The inquiry focussed on the impact of the minimum income requirement for partner visas, and other changes affecting adult dependent relatives (not discussed in this note). Over 280 submissions of evidence were received, over half of which were from families affected by the rules. [51]

The report recommended an independent review of the minimum income requirement and its impacts, to consider whether the level of the income requirement and the range of permitted income sources "represent an appropriate balance between the different interests in this area". [52] The Coalition Government rejected this idea, stating that it was satisfied that the family Immigration Rules "are operating as intended" but that it would keep their impact under review. [53]

The committee had found that the minimum income requirement had resulted in some British citizens and permanent residents being separated from their non-EEA national partner/children, including sponsors who were in full-time employment and earning above the minimum wage. Submissions of evidence suggested that sponsors based outside London and the South East, and in lower-earning sections of the population (including women, young adults, the elderly and some ethnic minority groups) had been particularly affected. It received evidence suggesting that there had been some unforeseen costs to the public purse as a result of non-EEA national partners' exclusion from the UK, such as UK-based sponsors having increased recourse to welfare benefits, and a loss of potential tax revenue from non-EEA partners' future earnings.

In addition, the committee contended that the limited range of income sources that can be taken into account appeared to have delayed or prevented some families from living together in the UK, including cases involving high income/high net worth individuals.

The UK's four Children's Commissioners endorsed the report, and particularly its recommendation that the Immigration Rules should "....ensure that children are supported to live with their parents in the UK where their best interests require this."a briefing which summarised the UK's obligations in domestic and international law and their concerns about how the new family migration rules have impacted on children's rights to family life. [54] In June 2013 they published [55]

The Coalition Government's response: willing to consider some minor changes

Following the publication of the APPG's report, a related Westminster Hall debate about the effects of the new family migration rules took place on 19 June 2013. [56] A similar debate took place in the House of Lords on 4 July 2013. [57]

During the debate in the Commons, Mark Harper, then Minister for Immigration, indicated a willingness to consider whether there was scope to introduce greater flexibility in the evidential requirements, such as in cases where the migrant partner has a job offer:

I am prepared to consider whether we can put in place some rules that are not vulnerable to abuse. The best argument was the example of a couple, one of whom would be working here but was insufficiently skilled to meet the criteria to apply under the tier 2 scheme. (...) If people can get here under a tier 2 visa, that is fine. However, clearly there are people who could make a contribution but could not meet those criteria.

The situation is not quite as straightforward as people say, because we must guard against abuse. If all people have to do is to show a piece of paper saying that they have a job offer, I know from the number of cases I have seen that it will not be long before people are setting up vague companies and offering jobs that do not exist. There must be a way of putting in place processes that do not lead to abuse. I think that is worth doing and I am prepared to go away and do so. [58]

In a subsequent Westminster Hall debate on the financial requirement in September 2013, the Minister confirmed that the Home Office was considering how the Rules could take a migrant spouse's job offer into account, and that it remained willing to consider arguments for further changes where "unintended consequences" of the Rules are brought to its attention. [59]

Some minor changes to the evidential requirements came into effect on 1 October 2013, such as allowing for electronic bank statements to be submitted and for cash savings to include proceeds from a sale of property. [60] The changes also included allowing sponsors returning to work in the UK to count future on-target earnings towards the financial requirement. In response to a parliamentary question in December 2014, the then Immigration Minister said that family migration would remain under "ongoing review" into Spring 2015:

We studied the report of the APPG on Migration's inquiry into family migration when this was published in June 2013. This ongoing review process will continue in April 2015 and will also take into account the findings of the courts on the new policies. [61]

3.3 The current Government's view

In response to a Parliamentary Question in September 2015, then Immigration Minister James Brokenshire explained how the Conservative Government view the minimum income requirement:

We welcome those who wish to make a life in the UK with their family, work hard and make a contribution, but family life must not be established here at the taxpayer's expense. The minimum income threshold under the family Immigration Rules for sponsoring a non-European Economic Area national spouse to come to the UK aims to prevent burdens on the taxpayer and promote integration. Its level reflects advice from the independent Migration Advisory Committee on the income which means a family settled in the UK will generally cease to be able to access income-related benefits.

The employment prospects of the migrant spouse are no guarantee that they will find work in the UK. Those with an appropriate job offer here can apply under Tier 2 of the Points Based System. Migrant spouses coming to the UK under the family route must be capable of being independently supported by their sponsor or by their joint savings or non-employment income. The courts have agreed that this is a matter of public policy for the Government and Parliament to determine. [62]

4. Legal challenges

In February 2017 the Supreme Court upheld the lawfulness of the minimum income requirement in principle. Litigation challenging the lawfulness of the financial requirement had been ongoing since 2013.

• In July 2013 the High Court did not strike down the Rules as unlawful in general, but found that the way they are applied would amount to a disproportionate interference with family life in certain types of case.

• In July 2014 the Court of Appeal allowed the Government's appeal against the High Court's decision.

• In May 2015, the Supreme Court granted permission to appeal against the Court of Appeal's decision. In its judgment of 22 February 2017 the Supreme Court held that the fact that the minimum income requirement may cause hardship to many does not render it unlawful.

4.1 High Court (July 2013)

Two British citizens and a refugee, who wished to sponsor their non-EEA national partners to join them in the UK but could not satisfy the financial requirement, challenged the maintenance requirements through judicial review.

Judgment was given in the High Court on 5 July 2013. [63] The Rules were not found to be unlawfully discriminatory, for example against female sponsors or those living outside London and the South-East. Nor were they deemed to be unlawful on the grounds that they failed to make an over-riding accommodation of the best interests of the child.

Furthermore, the court found that the Rules had legitimate aims (to promote the economic and social welfare of the whole community, facilitate integration, and provide clarity and transparency), and were rationally connected with those. It determined that the Home Secretary was justified in concluding that greater maintenance resources were needed in pursuit of these aims than the Immigration Rules had previously required.

It also recognised that there might be legitimate and proportionate restrictions on the admission of foreign spouses, and that financial self-sufficiency of a foreign family is a legitimate consideration.

However, the court highlighted several features of the maintenance requirements since July 2012 that led it to believe that that the scale of the interference with British citizens' rights is "very significant". It concluded that, when applied to cases sponsored by a British citizen or refugee, the Immigration Rules relating to the £18,600 minimum income requirement were so onerous as to be an "unjustified and disproportionate" interference with a genuine spousal relationship:

123. Although there may be sound reasons in favour of some of the individual requirements taken in isolation, I conclude that when applied to either recognised refugees or British citizens the combination of more than one of the following five features of the rules to be so onerous in effect as to be an unjustified and disproportionate interference with a genuine spousal relationship. In particular that it likely to be the case where the minimum income requirement is combined with one or more than one of the other requirements discussed below. The consequences are so excessive in impact as to be beyond a reasonable means of giving effect to the legitimate aim.

124. The five features are:

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

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.

Mr Justice Blake considered that there was a "wider margin of appreciation" available to the Home Secretary in cases involving a non-EEA national sponsor, observing that case law has generally found that there is no particular reason why non-EEA nationals' preferred place of residence must be facilitated by the Immigration Rules. However, the position is different for refugees and British citizens. British citizens have "a fundamental right of constitutional significance recognised by the common law" to reside in their own country, which is interfered with if their foreign spouse is excluded from the UK. Refugees are also in a different position to other non-EEA nationals, since they are unable to reside in their country of nationality, and are compelled to reside in a host state.

The determination went on to suggest some "less intrusive" ways in which a financial requirement might be applied:

147. There are a variety of less intrusive responses available. They include:

i. reducing the minimum income required of the sponsor alone to £13,500; or thereabouts;

ii. permitting any savings over the £1,000 that may be spent on processing the application itself to be used to supplement the income figure;

iii. permitting account to be taken of the earning capacity of the spouse after entry or the satisfactorily supported maintenance undertakings of third parties;

iv. reducing to twelve months the period for which the pre estimate of financial viability is assessed.

However, the Rules were not struck down as unlawful in general, and Mr Justice Blake noted that it was up to the Home Secretary to consider whether to make changes in light of the judgment.

The Home Office immediately suspended consideration of applications whilst it assessed the implications of the judgment. [64] It subsequently appealed against the outcome. [65] A letter from Lord Taylor of Holbeach, Home Office Minister, summarised the Government's position:

... matters of public policy, including the detail of how the income threshold should operate, are for the Government and Parliament to determine, not the Courts. We also believe that the detailed requirements of the policy, which reflect extensive consultation and consideration, are proportionate to its aims. [66]

Consideration of applications that fell for refusal solely because they did not satisfy the financial requirement continued to be suspended pending the outcome of the Home Office's appeal. However, processing continued as normal for applications that could satisfy the financial requirement, or that fell for refusal for other reasons. [67]

4.2 Court of Appeal (July 2014)

The Court of Appeal hearing took place over 4-5 March 2014 and judgment was given on 11 July. [68] The Court of Appeal overturned the High Court's decision.

Its findings included the following points:

149. So the key question is: to what extent should the court substitute its own view of what, as a general policy, is the appropriate level of income for that rationally chosen as a matter of policy by the executive, which is headed by ministers who are democratically accountable? Blake J suggested, at [147], that there were "less intrusive responses" that were available and he gave examples. What he meant by this is that, in his view, these "less intrusive responses" constituted what was "no more than necessary" to accomplish the policy aim and, in his view, constituted a fair balance between the rights of the individual and the interests of the community. I appreciate that proportionality has to be judged "objectively by the court". However, in making this objective judgment appropriate weight has to be given to the judgment of the Secretary of State, particularly where, as here, she has acted on the results of independent research and wide consultations.

(…)

151. I am very conscious of the evidence submitted by the claimants to demonstrate how the new MIR will have an impact on particular groups and, in particular, the evidence that only 301 occupations out of 422 listed in the 2011 UK Earnings data had average annual earnings over £18,600. But, given the work that was done on behalf of the Secretary of State to analyse the effect of the immigration of non-EEA partners and dependent children on the benefits system, the level of income needed to minimise dependence on the state for families where non-EEA partners enter the UK and what I regard as a rational conclusion on the link between better income and greater chances of integration, my conclusion is that the Secretary of State's judgment cannot be impugned. She has discharged the burden of demonstrating that the interference was both the minimum necessary and strikes a fair balance between the interests of the groups concerned and the community in general. Individuals will have different views on what constitutes the minimum income requirements needed to accomplish the stated policy aims. In my judgment it is not the court's job to impose its own view unless, objectively judged, the levels chosen are to be characterised as irrational, or inherently unjust or inherently unfair. In my view they cannot be. [69]

In a 'news story' published on GOV.UK on 11 July 2014, James Brokenshire welcomed the determination and defended the minimum income threshold:

We welcome those who wish to make a life in the UK with their family, work hard and make a contribution, but family life must not be established in the UK at the taxpayer's expense and family migrants must be able to integrate.

The minimum income threshold to sponsor family migrants is delivering these objectives and this judgment recognises the important public interest it serves. [70]

4.3 Supreme Court (February 2017)

The Supreme Court held the minimum income requirement to be acceptable in principle. [71] However it ruled that the Immigration Rules and the Immigration Directorate Instruction giving guidance to entry clearance officers unlawfully fail to take proper account 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 which affect them.

The minimum income requirement in principle

The court recognised the hardship caused by the Rules:

80. There can be no doubt that the MIR has caused, and will continue to cause, significant hardship to many thousands of couples who have good reasons for wanting to make their lives together in this country, and to their children. There are several types of family, not illustrated in the cases before us, upon whom the MIR will have a particularly harsh effect. These include British citizens who have been living and working abroad, have married or formed stable relationships there, and now wish to return to their home country. Many of these relationships will have been formed before the new Rules were introduced or even publicly proposed. They also include couples who formed their relationships before the changes in the Rules were introduced and who had every expectation that the foreign partner would be allowed to come here. Of particular concern is the impact upon the children of these couples, many or even most of whom will be British citizens themselves. These are illustrated in a Report commissioned by the Office of the Children's Commissioner for England, Family Friendly: The Impact on Children of the Family Migration Rules: A Review of the Financial Requirements (2015, Middlesex University and the Joint Council for the Welfare of Immigrants).

It accepted the minimum income requirement presents a "serious obstacle" to couples enjoying family life together, and may constitute a "permanent impediment" where a sponsor will never be able to earn above the threshold and the couple will not be able to amass sufficient savings to make good the shortfall. It also noted the difficulties experienced by women and some minorities:

Female sponsors, who have constituted as many as a third of the total, are disproportionately affected, because of the persisting gender pay gap, as are sponsors from certain ethnic groups whose earnings tend to be lower, and those from parts of the country where wages are depressed. [72]

However the Court emphasised that the fact that a rule causes hardship to many does not mean that it is incompatible with the European Convention on Human Rights (ECHR) or otherwise unlawful at common law.

The Court noted the minimum income requirement is part of the Government's overall strategy aimed at reducing net migration. It described its particular aims - ensuring that couples do not have recourse to welfare benefits and have sufficient resources to be able to play a full part in British life - as "entirely legitimate". It agreed with both Mr Justice Blake and the Court of Appeal that those aims are sufficient to justify the interference with, or lack of respect for, the right to family life enshrined in article 8 ECHR.

Like the lower courts, the Supreme Court also rejected the argument that there is no rational connection between those legitimate aims and the particular minimum income threshold chosen:

The work of the Migration Advisory Committee is a model of economic rationality. Even though it had to make certain assumptions, it was careful to identify and rationalise these. Making those assumptions, it arrived at an income figure above which the couple would not have any recourse to welfare benefits, including tax credits and housing benefits. That being a legitimate aim, it is also not possible to say that a lesser threshold, and thus a less intrusive measure, should have been adopted. [73]

The treatment of children

The Court noted that Appendix FM to the Immigration Rules asserts at paragraph GEN.1.1 that it takes into account 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 which affect them. However it described this statement as wrong in law. The Court found nothing in the relevant section giving direct effect to the obligation.

Furthermore, the Court took the view that the Immigration Directorate Instruction on family migration did not adequately fill the gap left by the Rules, failing to treat the best interests of the children as a primary consideration. [74] The Court found the guidance to be defective in this respect and in need of amendment.

The Court granted a declaration that in this respect both the Rules and Instructions are unlawful.

Treatment of alternative sources of funding

The Supreme Court also addressed the restrictions in the rules on taking into account the prospective earnings of the foreign partner. Whilst the Court accepted that "the application of the restrictions may seem harsh and even capricious in some cases", it noted that the decision was not taken on a whim but had been the subject of careful consideration by both the MAC and by the Secretary of State. The restrictions reflected the relative uncertainty and difficulty of verification of sources of alternative funds, and the decision to prioritise simplicity of operation and ease of verification was not irrational.

Nevertheless, the Court held the "rigid restrictions" in the Rules were inconstant with the 'evaluative exercise' required of restrictions imposed on the right to family life enshrined in article 8 ECHR. The Court took the view that a tribunal dealing with an appeal can judge for itself the reliability of any alternative sources of finance claimed by a migrant and his or her sponsor partner. The Court felt it makes little sense for decision-makers at an earlier stage to be forced to take a narrower approach.

Whilst this did not undermine the legality of the Rules as such, the guidance for entry clearance officers ought to be amended to make clear they are not precluded from taking account of other reliable sources of earnings or finance. Whilst it is open to the Secretary of State to indicate criteria by which the reliability of alternative sources may be judged, she cannot exclude them altogether.

Next steps

The Home Office must respond to the judgment by amending the Immigration Rules and issuing fresh guidance to address cases involving children and assessment of alternative sources of funds.

The Supreme Court opted not to discuss remedies in its judgment, adjourning the question "to allow time for the Secretary of State to consider her position, and to indicate to the appellants and to the court how she proposes to amend the instructions or other guidance to accord with the law as indicated in this judgment." Barrister Colin Yeo suggests this places pressure on the Home Office to devise new rules and guidance that are genuinely compliant. [75]

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[75] Free Movement, 'Supreme Court upholds Minimum Income Rule of £18,600 to sponsor foreign spouses', 22 February 2017