Minimum income threshold for foreign spouses and partners upheld by Supreme Court

Published: 23/02/2017

According to the British Supreme Court, a Home Office policy which requires families to reach a minimum income threshold before foreign nationals can apply for a UK settlement fiancée, partner or spouse visa is ‘lawful in principle’. The decision, which was made following sustained campaigning from families separated by the policy, comes with certain caveats regarding children affected by the policy. The Supreme Court is Britain’s highest court of appeal. However, while it can rule a government policy unlawful or in breach of human rights, it has no power to fundamentally alter government regulations. Thus, while judges recognised that the current policy had caused and would continue to cause “significant hardship”, they concluded that it was not actually illegal. From here, campaigners could take their case to the European Court of Human Rights but, with Brexit looming, that court’s power over British policy may soon be limited.

As it stands, the immigration policy has a financial requirement in which the British partner must be earning £18,600 per annum if the couple have no children. If any non-British children are present, the British partner is required to earn £22,400 per annum. Any additional children require an extra £2,400 each before a partner visa, spouse visa, or fiancee visa will be considered. The Home Office does not currently consider the income of the non-British partner unless they have permission to work in the UK at the time of application, nor any alternate sources of wealth (such as property or investments) other than the British partner’s wages and couples’ cash savings. The policy is intended to prevent migrant families from relying upon the British benefits system. However, many point out that plenty of families currently forced to live apart could easily meet the minimum income threshold were alternative sources of income (including the income of the non-British partner) considered. The policy does not affect migrants from within the European Economic Area (EEA).

What this ruling means in principle is that non European immigrants looking to apply for a UK spouse, partner or fiancée visa in order to join their family in the UK will still be largely reliant on their partner’s income to get an assessment under the current financial policy. However, the seven judges who presided over this case did make certain recommendations to the Home Office. In particular, they were concerned that the implementation of the policy threatened to breach the Home Secretary’s legal duty to protect the welfare of children. The judges recommended that the rules be altered to allow a wider picture of overall income for affected families, and that exceptions be made in particular circumstances – especially where children were concerned. Should the Home Office take this on board, it may allow a little more flexibility for families applying for visas.

The overall aim of the policy is to assuage concerns about the impact of immigration on the British welfare state. By proving that their partners are able to support them financially, the Home Office believes that they are preventing migrants from relying on the benefits system. However, many have condemned the policy as both unrealistic and unduly cruel. Brian Paddick, home affairs spokesman for the Liberal Democrat Party has said that “British citizens in loving relationships with foreign nationals should not be discriminated against by their own government”. The Joint Council for the Welfare of Immigrants said that the policy was “tearing families apart and significantly harming children”. They also believed that the judges’ stern comments on the policy proved “the Government’s position to be untenable”, and that “they must now take immediate steps to protect the welfare of children in accordance with their legal duty”. The Home Office, while saying that they are “carefully considering” the words of the judges, also stated that “The court has endorsed our approach in setting an income threshold for family migration”.

Many have found the UK immigration and visa system difficult to navigate, and this policy, for many complicates matters even further. Whether or not any significant change will come out of this case, or whether things will simply continue as before remains to be seen.

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