The Court of Appeal has handed down its judgment relating to three applications for judicial review made in respect of the minimum income threshold which was inserted into the Immigration Rules under Appendix FM on 9 July 2012.
What is the minimum income requirement?
The minimum income requirement applies to those people applying for entry clearance, leave to remain, further leave to remain or indefinite leave to remain as a partner of a British Citizen or a person who is present and settled in the UK, i.e. has indefinite leave to remain in the UK. The Financial Requirement states that an applicant must have a specified gross annual income of at least:
(ii) an additional £3,800 for the first child; and
(iii) an additional £2,400 for each additional child.
This income could be made up of the applicant or his or her partner’s income or none employment income and cash savings above, £16,000.
Judgment of 5 July 2013
In 2013, three separate individuals challenged these provisions by way of judicial review as they believed that the rules were incompatible with their rights under the European Convention on Human Rights. Permission was granted and the High Court hearing took place in February 2013. Mr Justice Blake handed down his judgement on 5 July 2013.
Blake J deliberated that British citizens have a “fundamental right of constitutional significance recognised by common law” to live in their home country “without let or hindrance”. However in many cases, the rules required British citizens to leave their country in order to be with their spouses/partners and this was disproportionate. It was also unreasonable in the case of refugees who have been granted asylum, to leave the UK, and having to chose between staying in UK or marrying their partner, a decision that no-one should have to ever make.
Blake J, however, did not strike down the financial requirement rules as he believed they had pursued a legitimate aim which was to ensure that a migrant did have recourse to public funds but concluded that they were disproportionate when applied to British citizens and refugees.
Blake J considered the five features of the minimum income requirement and stated that if combined with one or more of the other requirements then the requirement was likely to lead to a disproportionate interference with the right to family life. The five features considered were:
• The minimum income level of £13,400 identified by the Migration Advisory Committee as the lowest maintenance threshold; such a level would be close to the adult minimum wage for a 40 hour week. Further, of the 422 occupations listed in in the 2011 UK Earnings Index, only 301 were above the threshold
• Any shortfall of the minimum income can be made up of any savings which are over £16,000
• Under the rules, the applicant has to show maintenance for two and a half years as opposed to 12 months
• Under the rules, credible and reliable evidence of third party support is completely disregarded
• The rules disregard the spouses own earning capacity during the 30 month period of initial entry
In his conclusions, he stated that the minimum income requirement ‘effectively denies young people and many thousands of low-wage earners in full-time employment, the ability to be joined by their non-EEA spouses from abroad unless they happen to have wealthy relatives or won the lottery.’
Mr Justice Blake offered some guidance to the Secretary of State and suggested that the requirements be amended as follows:
• Reducing the minimum income requirement 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.
The Secretary of State appealed this judgement and since 5 July 2013, put on hold all cases that would fall for refusal solely on the basis of not meeting the financial requirement and as a result over 3,000 cases have been placed on hold. Many partners and families have been separated from one another and they have been faced with turmoil.
Judgement of 11 July 2014
The Court of Appeal hearing took place on 4th and 5th March 2014 and judgement was handed down on 11th July 2014.
The Secretary of State’s appeal was allowed by the Court of Appeal. Lord Justice Aitkens gave the lead judgement and stated that the Secretary of State has a common law duty not to implement a rule which is ‘unjust, made in bad faith or involves “such oppressive” or gratuitous interference with the rights of those subject to them’ as cannot be justified. If the Secretary of State promulgated such an immigration rule then it could be struck down.
Furthermore, he stated that ‘it is the duty of the Secretary of State to formulate an IR [immigration rule] in a way that means that even if it does interfere with a relevant Convention right, it has to be capable of doing so in a manner which is not inherently disproportionate or inherently unfair. Otherwise it will not be “rational”, or it could be stigmatised as being “arbitrary” or objectionable” or be characterised as being “arbitrary and unjust”.’
He identified that a test for striking down an immigration rule be applied and that ‘is whether the IR is incapable of being proportionate and so is inherently unjustified.’ He also stated that a particular immigration rule does not have to result in a person’s Convention rights being “guaranteed”.
Aitkens LJ did not accept Blake J’s judgement in the High Court and stated that: “There is nothing in the 1971 Act or the common law that grants a “constitutional right” of British citizens to live in the UK with non-EEA partners who do not have the right of abode in the UK and who are currently living outside the UK.”
He accepted that the UK partner who was either a British citizen or a refugee “is entitled to respect of his or her right to marry and to found a family. But those are not absolute rights; there is no absolute right to marry and found a family in the UK if it involves marriage to a non-EEA citizen who then wishes to reside in the UK.”
Aitkens LJ disagreed with the five suggestions made by Blake J as he stated that the Secretary of State does not have to have “irrefutable empirical evidence” that the individual features of the policy proposed will achieve the social aim intended.
He went on to mention that work done by the Migration Advisory Committee showed that there was clearly a “rational connection” between the chosen figures and the aim of the policy. He said that the belief in link between higher income and the likelihood of better integration is rational.
In relation to the best interests of children under S.55 of the 2009 Act, he stated that the Secretary of State had fulfilled her duty. The appeals were allowed and Blake J’s order in paragraph 1 of his judgement was set aside.
Impact of the decision
As mentioned above, in July 2013 a stay was made on all decisions which would fall for refusal on the basis of failing to meet the financial requirement and the stay may now be lifted following the handing down of the judgement. This will result in many applications being refused and the appeal process would have to be followed if a right of appeal is granted.
Many families and partners will remain separated from one another until they can show they can meet the minimum income requirement and many group of individuals will suffer, such as students, and part-time workers. Many people who are being paid at the national minimum wage and working long hours may still not be able to meet the requirement. It may be safe to say that some of these people never will and this will mean that their spouse can never join them in the UK.
What will happen next?
It is likely that the respondent’s will appeal to the Supreme Court and if this is the case, the prolonged separation of partners and families will continue.
By Jasmine Shergill,
Solicitor – Immigration, HR & Employment Department for TURBERVILLES (www.hrandemploymentlaw.com)
This blog does not constitute legal or other professional advice. Appropriate legal advice should be sought for specific circumstances and before action is taken
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