High Court judgment on income threshold for partners and spouses

UK marriage visa process: High Court judgment on income threshold for partners and spouses affecting settlement applications made after 5 July 2013

"LONDON, U.K., July 23, 2013 (SEND2PRESS NEWSWIRE) -- UKmarriageVisa, a full service immigration consultancy specializing in UK fiancee, unmarried partner and spouse visas, today announced that the latest High Court judgment on the UK Border Agency (UKBA) financial requirement for partners and spouses of British citizens and legal permanent residents is affecting UK settlement visa applications made after 5 July 2013.

A year after income threshold rules for those applying for a UK marriage, partner or fiancee visa under the settlement category were introduced by the UK Border Agency, the High Court has handed down its ruling on whether it is unlawful. Three claimants had challenged the new measures by taking their cases to the High Court, on the grounds that rules were discriminatory and interfered with Article 8 of the Human Rights Act, the right to a private and family life.

Ever since the rules regarding UK marriage and spousal visas came into force they had attracted a lot of criticism from those directly affected and bodies speaking on behalf of would-be immigrants to the UK, because the levels set were outside the wage-earning capacity of most of those sponsoring a foreign partner or spouse for a UK settlement visa to join them in the UK. The threshold was set at 18,600 pounds per year, rising to 22,400 pounds if one child was also applying. An extra 2,400 pounds is then added for every extra child. This takes the minimum earnings required to well above the median earnings of the UK worker. One estimate puts the level as above that earned by 47 percent of the general UK working population, meaning that many families have been separated for at least a year to date.

The High Court, whilst stating that the rules regarding UK partner visas were not "unlawful" was of the opinion that they were onerous and unjustified. The High Court judge, in giving his judgment, said that the earnings threshold was disproportionate if combined with one of the four other requirements in the rules - for example, an inability to supplement a shortfall in income with savings, unless the savings were over 16,000 pounds. He added that "While there may be sound reasons in favour of some of the individual requirements taken in isolation," the combination of more than one of the five requirements of the rules was "so onerous in effect as to be an unjustified and disproportionate interference with a genuine spousal relationship."

Whilst unable to strike down the law on salary thresholds on the basis of discrimination, or due to a conflict with the statutory duty to regard the best interests of children while making visa decisions, the High Court did, however, make some suggestions as to what would be a reasonable level to set the threshold, namely, something more in the region of 13,000 pounds, a figure more in-keeping with the UK median salary. The Home Secretary, Teresa May, has permission to appeal the judgment, but she has been given a clear message by the High Court that adjustments must be made to prevent more hardship on families facing even longer terms of separation.

While waiting to see whether an appeal is to be lodged and the outcome, effective 5 July 2013, the UK Border Agency (UKBA) has paused any UK settlement visa applications, i.e. UK marriage visa, fiancee visa, unmarried partner visa, that would be turned down on financial grounds alone. The UKBA has made it clear that any other reason for refusal of a visa for the entry of a non-EU/EEA spouse or family member will still stand and that also anyone who falls into the "paused" category will still have to cancel their application in the normal way should they need their passport for travel. The UK immigration authorities also pointed out that no application fees will be refunded in these cases.

The High Court ruling has not, in the event, given a clear answer in respect of the current threshold earnings ruling and as such is not what the claimants and many other people had hoped, but the recommendations of the court have given them reason to hope that before too many more months have elapsed, a large number of families kept apart by the financial rules will finally be able to be together again."

http://www.send2press.com/newswire/...made-after-5-July-2013_2013-07-0723-003.shtml

"Following the All Party Parliamentary Group on Migration’s report published on 10 June 2013 – covered on Free Movement earlier last month - the ‘new’ family migration rules have been debated twice in Parliament. First, within a Westminster Hall debate on 19 June 2013 (Hansard & video footage) and more recently, in the House of Lords on 4 July 2013 (Hansard & video footage). The latter was rather ominous, as we now know, that was the day before Mr Justice Blake’s judgment in MM & Ors v SSHD [2013] EWHC 1900 (Admin) handed down on Friday in relation to the income threshold of £18,600 and covered on Free Movement here.

In the first debate, numerous references were made to the fact that the minimum wage amounts to a gross annual income of £12,850 or thereabouts – well below the current threshold in the Rules of £18,600. In addition, that the average wage in both the private and the public sectors is around £13,000 to £14,000. The innumerable difficulties experienced under the new rules were described as “perverse outcomes” and comparing the new rules with the old, Sarah Teather, Liberal democrat MP for Brent Central, gets is spot on:

The first thing that is very apparent about the new rules is that they represent a distinct philosophical shift in approach from the old rules. The system used to be tilted in favour of family life, subject to certain basic conditions being met, such as the ability to support a spouse coming into the UK and the ability to meet a basic income threshold, which was pretty much tantamount to a basic income threshold that we would expect around income support levels. Now, the system is tilted entirely in the opposite direction, and against family life, unless someone can meet certain requirements to demonstrate that their spouse who is coming into the UK is desirable in some way and meets some extra criteria. So rather than having a system that was very much about keeping families together, the system now is about serving an overall objective on immigration policy, with family life being significantly relegated in importance. Of course, it is not only family life that is being relegated in importance, but relationships, children’s best interests, basic human compassion and a certain level of common sense.

(…)

Why are the rules being so rigidly and inflexibly enforced? It is because income probably has nothing to do with it. It is not really about trying to prevent a burden on the taxpayer; it is actually about the Government trying to demonstrate that we are reducing the number of foreigners coming into the UK. That is driving it. If anything else were driving it, it would be implemented in a far more common-sense way, there would be much more flexibility around it, and it would not have been set at a level to keep out as many people as possible.

If anything else were driving it, the Rules would simply have not been changed…

In respect of the new elderly dependent relative rules, these are described as “a ban masquerading as a rule” and the powerful evidence from the British Medical Association was repeated in relation to the impact of these on consultants and senior doctors, many of whom are second-generation South Asian, and upon whom the NHS is heavily dependent.

The momentum was carried over to the House of Lords debate which took place last week. Many many passionate contributions were made. Including this particular outlook from Lord Taylor of Warwick :

“No blacks, no Irish, no dogs”; that was the sign in many windows in Britain in the late 1940s when my father was looking for accommodation. Growing up in Jamaica, he had thought of Britain as the mother land. After fighting for the British Army in the Second World War, he was shocked to be asked, when he came to Britain, when he would be going back home to the Caribbean. But after scoring a century for Warwickshire County Cricket Club he changed overnight from being described in the local Sports Argus as a “Jamaican immigrant” to “local Brummie hero”.

Let us fast forward to August of last year. Instead of racist signs in windows, millions of British TV viewers and thousands in the Olympic stadium cheered a Somali immigrant running to double Olympic gold. What was also significant was that the man from Mogadishu, Mo Farah, was wearing a British vest. Today, many of Britain’s high flyers in public life, business, entertainment and sport are from immigrant backgrounds. This is why the all-party parliamentary group report is so important. It is not an inquiry just about a minority group; it is about the Britain of the future.

To both debates, the Home Office’s representatives (Mark Harper, Immigration minister in Westminster Hall debate and Lord Taylor of Holbeach, Parliamentary Under-Secretary of State, Home Office) very much followed the same mantra: the new rules are there to safeguard against abuse and to save the tax-payers from sponsoring other people’s family member coming to the UK.

As if from a parallel universe, we are told by Lord Taylor of Holbeach that:

The new family rules are intended to bring a sense of fairness back to our immigration system. The public are rightly concerned that those accessing public services and welfare benefits have contributed to their cost. The changes we have made are having the right impact and they are helping, I hope, to restore public confidence in the immigration system.

The rules themselves were not struck down as unlawful by Mr Justice Blake in MM & Others and instead a variety of less intrusive responses were identified as being available [Paragraph 147 of judgment]. These include:

Reducing the minimum income required of the sponsor alone to £13,500; or thereabouts;
Permitting any savings over the £1,000 that may be spent on processing the application itself to be used to supplement the income figure;
Permitting account to be taken of the earning capacity of the spouse after entry or the satisfactorily supported maintenance undertakings of third parties;
Reducing to twelve months the period for which the pre estimate of financial viability is assessed.
It remains the case therefore of maintaining pressure upon the government so that the SSHD heeds the numerous observations made by Mr Justice Blake and makes the necessary adjustments to the Immigration Rules as a matter of urgency."

http://www.freemovement.org.uk/category/immigration-rules/spouses/