The financial requirements, which require a British citizen wishing to sponsor a non EU partner to come to the UK to be earning at least £18,600 a year, have previously been subject to judicial criticism. Last year the High Court ruled that the threshold was too high and in many cases was likely to be an unjustified interference with human rights.
The Home Office appealed that decision and in the meantime has placed over 3,500 applications on hold pending the outcome of the case. The Court of Appeal has today determined that the rules are not unlawful and reversed the earlier decision. This means that the £18,600 threshold remains in place.
This particular judgement could still be appealed to the Supreme Court and in my view such an appeal is likely. However, many of those affected by the decision will be asking what the practical implications of the decision are for them. My view is that:
- If the £18,600 threshold is met an application should be made but it is critical that all of the relevant supporting documents are provided otherwise the application is likely to be refused. The evidential requirements are extremely complex and the Home Office interprets them strictly;
- If the applicant or partner is outside the UK and it is uncertain if the £18,600 threshold can be met legal advice should be sought. Other immigration routes may be available or it may be possible to argue that the applicant is exempt from the financial requirement.
- If the applicant is inside the UK and needs to switch into the partner route but cannot meet the £18,600 threshold legal advice should be sought. In some cases it is possible to make a human rights application and, although these are commonly refused by the Home Office, it is possible to appeal the decision. We have had numerous successful appeals before the tribunal for clients who do not meet the financial threshold but have a strong human rights case for remaining in the UK.
- If an application is on hold it may still be necessary to wait to see if the MM case is appealed to the Supreme Court. The Home Office may now begin to issue decisions in the cases which have been placed on hold, in which case a right of appeal may be granted against any refusal. Whilst it may be possible to challenge individual cases on human rights grounds, this will depend on the individual facts of the case. If the MM case is appealed to the Supreme Court the Home Office may choose to continue placing applications on hold.
- If an application is on hold and if the applicant is now in a position to meet the financial requirements it may be appropriate to make a fresh application or further submissions to the Home Office.
My initial reading of the decision is that, whilst it is a setback for those campaigning to lower the minimum income requirement, it is not all bad news. The Court of Appeal seems to confirm that it will still be necessary to examine human rights arguments in individual cases. My experience in the tribunal has been that, where the rules constitute a significant interference with family life and in particular where they impact on children, the tribunal is willing to grant appeals. This is likely to remain the case following this decision and, as cases will be dependent on individual circumstances, it is vital that individuals obtain experienced legal representation to assist with appeals.
It is likely the MM case will move onwards to the Supreme Court and it is unlikely the issue of the financial requirement will be resolved until at least 2015. During that time we can expect the political debate regarding the financial requirements to continue, particularly in light of the recent findings of the Migrants Rights Network that 48% of workers in Scotland would not meet the financial requirement.
Families affected by the decision in Scotland will also closely monitor the outcome of the independence referendum in September as the White Paper indicates that a lower threshold may apply in an independent Scotland.
If you are affected by the decision or looking for legal advice on family migration matters please contact me below.