HIGH COURT JUDICIAL REVIEW OF THE MINIMUM INCOME THRESHOLD FOR PARTNERS AND CHILDREN APPLYING IN THE FAMILY IMMIGRATION ROUTE – INTRODUCED ON 09/07/12- APPENDIX FM

 

On 5th July 2013 the High Court’s decision in MM Javed and Majid v Secretary of State [2013] EWC 1900 Admin considered the rules on family migration introduced on 09/07/12 in the Partners and children’s category.

As previous articles on our website state, before a person in the UK can sponsor a foreign partner they must now show that the UK spouse has an income of at least £18,600 pa (with additional sums for each non-British child). It is possible to make up any shortfall in annual income by having significant savings greater than £16,000. These rules apply to all British Nationals, partners and children of refugees and other persons lawfully settled in the UK. They do not apply to partners of EEA nationals or partners of persons here under the points based system.

His Honour Justice Blake ruled that, at least in the case of sponsors who are British Citizens or refugees, the income requirements of £18,600 per annum income may be a disproportionate and unjustified interference with the right to respect for the private and / or family life of those affected in the UK. This would be a breach of Article 8 ECHR and therefore unlawful under s6 HRA 1998. It is important to note that the £18,600 was not found to be disproportionate on its own, but was found to be disproportionate when a combination of more than one of five features apply:

  1. Setting the minimum income level above £13,400 (a level close to the adult minimum wage for 40 hours a week)
  2. The requirement to have a minimum of £16,000 before savings can be used to rectify any shortfall in income
  3. Where savings are used to rectify any shortfall in income, requiring those savings to be sufficient to cover the shortfall for the whole 2½ year visa period (a 12 month period was considered to be more appropriate)
  4. Not allowing third party support even if credible and reliable evidence of it is provided (e.g. deed of contract of support by an appropriate financial records)
  5. Not considering the spouse’s own earning capacity during the 30 month period of initial entry. The Honourable Justice Blake considered this the most striking feature of the scheme and struck him “as both irrational and manifestly disproportionate in its impact on the ability for the sponsors to live together.”

In practice this decision gives scope to submit applications and argue cases before the Tribunal where persons may previously have considered they had no hope (unless they had a very strong human rights case) of succeeding. It seems to be of little help to applicants without third-party support, no realistic prospect of employment in the UK and no (or very limited) savings.

The Secretary of State for the Home Department has been given permission to appeal and the case is likely to be expedited.

In the meantime the Secretary of State for the Home Department stated on her website on 5th July 2013 that “the Home Office has paused decision-making on some spouse/partner and child settlement visa and leave to remain applications to enable us to consider the implications of the judgement.” A Home Office spokesperson said that whilst they were considering how to respond to the judgement “in the meantime, where an Applicant does not meet the minimum income threshold and there is no other reason to refuse it, the application will be put on hold.”

 We will keep you posted on developments on these immigration rules.

  

ONE Immigration 10/7/13

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