Court upholds minimum-income requirements for spousal visas

IMPACT – MEDIUM

What is the change? The U.K. Supreme Court has upheld the immigration rule that imposes a minimum-income requirement for British citizens and permanent residents looking to sponsor their non-EEA dependents in the UK.

What does the change mean? The ruling does not affect visas for dependents of Tier 2 workers or other points-based system migrants, or any European nationals and their family members. While the minimum-income requirements will stay in place for British citizens and permanent residents, the Court has demanded greater evidential flexibility for the family to show alternative sources of funding, and a rewrite of the extremely prescriptive “specified evidence” guidance is now expected.

• Implementation time frame: Immediate and ongoing.
• Visas/permits affected: “Spousal visas” and other Appendix FM applications.
• Who is affected: Non-EEA spouses, civil partners, unmarried partners with two years cohabitation, children and other dependents of British citizens or permanent resident in the U.K.

Background: The minimum-income threshold for spousal visas has been a requirement since 2012. The British citizen or permanent resident must demonstrate minimum income of £18,600 in order to sponsor their non-EEA spouse or partner to come to or remain in the U.K. The threshold increases to £22,400 if the family has a non-EEA child, and by £2,400 per child thereafter. Notably, the income of the non-EEA spouse or partner cannot be taken into consideration, which severely disadvantages families in which the British citizen or permanent resident does not work or is not the main breadwinner.

A group of families who were unable to meet the income requirement and therefore living in separate countries challenged the rule in the Supreme Court, arguing that it impeded their rights to family life. Evidence was given to show the current level of the minimum-income requirement prevents 41 percent of the U.K. working population from being a sponsor, and 55 percent of working women. The court upheld the principle of imposing a minimum-income requirement as a legitimate means to reduce net migration and ensure that family dependents are not a drain on public resources. However, the Court also recognized that the rule was especially harsh for families who have been separated from children because they are unable to meet the income threshold and asked guidance to be reconsidered on which assets can be relied upon to demonstrate family resources and how the rights of children can be better considered in overall decision making.

BAL Analysis: The ruling does not affect Tier 2 and other points-based system skilled workers and their dependents or the current European free movement regime for EEA nationals and their family members. Although the case does not directly address the impact on European nationals, the fact that the court has upheld the use of minimum-income requirements as a legitimate means to limit net migration to the U.K. overall suggests that such limits may apply in the future to EEA national spouses post-Brexit, albeit with much greater evidentiary flexibility.

This alert has been provided by the BAL Global Practice group in the United Kingdom. For additional information, please contact uk@bal.com.