High Court judgment on UKBA financial requirement for partners

Published: 05/07/2013

In July of 2012, the income threshold for those sponsoring a family member to enter the UK on a spousal visa, unmarried partner or fiancee visa under the settlement category was set at £18,600 a year, rising by £3,800 if one dependent child is added to the UK marriage visa application with another £2,400 for each additional child. Statistics suggest that this basic threshold is above the salary earned by 47% of the UK working population and critics have therefore been very vocal in their belief that this threshold is unfair and discriminatory. As a result, three cases were taken to the High Court, on the basis that the rules were discriminatory and interfered with Article 8 of the Human Rights Act, the right to a private and family life. The High Court has now handed down its judgment, one year after the UK Border Agency (UKBA) financial requirement came into effect.
The judgment will please some, but others will be disappointed that the threshold rule has not been summarily overturned. The judges said that the rules were ‘onerous and unjustified’ but they were not unlawful. Whilst declining to strike down the rules, the High Court did, however, say that the judges urged the Home Secretary to look into the rules and how they could be adjusted, as soon as possible.
Meanwhile, the knock-on effect for those with outstanding UK settlement visa applications in varied. In cases where the economic rule is the only legal barrier which stands between an acceptance and a refusal, the applicants will be told that the decision-making will be put on hold while the full implications of the judgment are considered by the UK Border Agency (UKBA). This will affect only a relatively small number of cases and will apply solely to UK marriage, partner and fiancee visa applications made under Appendix FM of the Immigration Rules. This will also apply to a very small number of adoption cases which were held up for the same reason. It is important to note that applications which meet the current financial requirements, but may potentially be refused on other grounds, such as requirements for English language or a genuine and subsisting relationship, will continue to be processed and decided as normal.
The High Court had some suggestions to make which it is not mandatory for the Home Office to follow or even consider. Even so, they have been given a welcome by various bodies which have been campaigning for the removal of the financial rules. One such suggestion is the reduction of the threshold of annual salary to £13,000 as this represents a more realistic figure, taking into account the likely salary coming into the household from the sponsor’s employment alone. Although they were hoping for the threshold to be overturned completely, the  Joint Council for the Welfare of Immigrants (JCWI), said, through a spokesman, that the ruling proved the rules were ‘disproportionate’.
A ‘pause’ in the decision-making process is not a guarantee that an application will be granted because the Home Secretary Teresa May has been given leave to appeal the High Court judgment. If she does so and is successful it is still not certain what the government will do to reduce the threshold, so the good news is that applications which are only at risk of refusal on financial grounds are being paused, rather being refused. All other requirements remain; for example, should anyone who is in the position of having their application paused choose to withdraw from the system they may still do so, but will not receive a refund of visa application fees. There will be a number of people affected by the pause in the decision making, for example those who need to retrieve their passport for travel and they will need to re-apply later.
This High Court judgment comes on the heels of an All-Party Parliamentary Group on Migration that found that the system needs to be re-assessed, due to the large numbers of families who are in distress through being separated because of the financial rules. A Home Office spokesman has been quoted as saying that they are looking again at the impact the rules have on the average family seeking to enter the UK to join a British citizen or legal permanent resident. The decision is eagerly awaited by many thousands who wish to reunite their families, but all they can do at the moment is watch and wait.

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