Supreme Court gives judgement on spouse visas

spouse visa

The Supreme Court gives judgement on spouse visas and the financial requirements of £18,600

In July 2012, the Government made substantial changes to the Immigration Rules, which particularly impacted on those who were sponsoring family members coming to the UK. ‘Appendix FM’ of The Rules introduced a number of significant hurdles that family members needed to overcome. The Supreme Court in the case of R on the application of MM (Lebanon) and others v SSHD [2017] UKSC 10 has now considered whether the introduction of the ‘financial requirement’ for spouses is lawful.

 

What is the Financial Requirement under the July 2012 Rules?

Under the previous system of Immigration Rules, an Applicant for a spouse visa needed to satisfy a ‘maintenance’ requirement which showed that they would be adequately supported in the UK without having any ‘recourse to public funds’. When deciding whether an Applicant satisfied this criteria, the Home Office would assess whether the income available to them in the household, after taking into account housing costs, would exceed the amount that they would receive if they were on a UK benefit known as income support. This was a relatively low threshold. In addition, as well as being able to rely upon the income received by the UK spouse, it was possible to rely upon support that was promised to the couple by third parties (such as family members who promised to give the Applicant a certain sum every month) and prospective job offers in the UK that the Applicant had received.

Under the system introduced in July 2012, an Applicant was required to evidence a minimum income of £18,600. This minimum income would increase if there were also non-settled children in the family. The income requirement for a family with one such child was £22,400, with the income requirement raising a further £2,400 for each additional child.

Under the new Rules, other than in very limited circumstances, the Applicant can only rely upon the income that their UK based partner is earning to meet the requirement. This means that third party offers of support and any job offers that the Applicant has in the UK, cannot currently be taken into account.

The financial requirement also allows savings to be taken into account to meet the financial requirement, but only if those savings exceed £16,000. For an Applicant who wants to solely rely upon savings to meet the financial income requirement of £18,600, it is necessary to evidence savings of at least £62,500.

It estimated by some that 40% of British citizens would be unable to satisfy the current financial requirement.

What the Supreme Court was asked to decide

The Supreme Court was asked to reach a decision on three principle issues:

  1. Whether the principle of having a minimum income requirement was compatible with human rights law;
  2. Whether the treatment in the Rules and Guidance of children was lawful; and
  3. Whether the income requirement was lawful in preventing Applicants from relying on third party support and job offers in the UK to meet the requirement.

Principle of a minimum income requirement

In this part of the case, the Court found in favour of the Government. They found that having a minimum income requirement was, in principle, lawful, as part of the Government strategy of reducing net migration.

This finding does not mean that there will not be individual cases where a refusal of an application on financial requirement grounds will be a breach of that individual’s human rights, but it does mean that the principle of having such a Rule is not itself in breach of human rights law.

Treatment of Children

There is a requirement in UK law, including in the context of immigration, to treat the best interests of children being affected by decisions, as a ‘primary consideration’. The Government argued that it would be for Entry Clearance Officers to make decisions on individual cases to ensure that children’s best interests were protected.

However, the Court considered the Guidance that entry clearance officers needed to take into account when deciding cases and found that they set the threshold at which a child’s rights would be breached too high. They had no hesitation in finding that the Guidance was defective, and that new Guidance would need to be issued which was compatible with human rights caselaw, to ensure that the best interests of children were given primary consideration.

The Court further found that the Immigration Rules should also be amended to reflect the Government’s duty towards children. The Court did not describe how the Rules should be amended, but as they have been found to be unlawful, it will be necessary for the Government to make changes to the Rules to fully reflect that Entry Clearance Officers are properly taking into account the impact of children when deciding applications.

In practice, this means that if there are children who are being adversely impacted by a decision to refuse a spouse entry clearance to the UK, there is a strong legal argument that the Government’s reliance on the Immigration Rules in their current form is unlawful.

Treatment of Third Party Support and Job Offers

In this part of the case, the Government argued that for reasons of ‘practicality’ it was not appropriate to include offers of support from third parties or prospective job offers. They argued it was difficult to assess how credible such support or job offers were and there were ‘substantial risks and uncertainties’ attached to the calculation.

The Court however rejected the Government’s arguments. Whilst acknowledging that it may be difficult for an Applicant to prove that there is suitable support available from a third party or that a job offer would materialise in actual work upon the Applicant’s arrival, they found that it was overly prescriptive to prevent the Applicant from being able to rely upon other sources of funding even if they had good evidence available to them.

The Court therefore found that the current Guidance needed to be amended so that Applicants could rely upon support from a third party, or a job offer in the UK.

Applicants who may otherwise struggle to meet the financial requirement, can therefore now argue that they would meet the financial requirement with the support of a third party (such as a family member) or through the work income the Applicant would obtain upon arrival in the UK. This is a significant development for many families. If relying on other sources of funding however, Applicants will need to ensure that they provide comprehensive evidence of the potential source of funding and be prepared that the Home Office may not in the first instance accept that source of funding as credible.

Conclusion

Whilst the income requirement has remained in-tact, the Supreme Court’s decision will offer hope to many families who have been prevented from living together in the UK previously.

There are certain aspects of the financial requirement that the Supreme Court did not consider, such as the difficulties that the Rules impose for those who are self-employed in satisfying the financial requirement. These are matters that may well continue to face scrutiny by future courts and which may force the Government to make further amendments to the Rules to prevent families from being forced to live apart for very substantial periods of time.

 

For further information on the spouse visa rules please contact Mark Lilley-Tams at markl@paragonlaw.co.uk

Leave a Reply