The Supreme Court has this week handed down judgement in MM (Lebanon) & Ors v Secretary of State for the Home Department [2017] UKSC 10, a case of significant interest concerning the minimum income requirement for spouses and partners.
Background
In July 2012, a new Appendix FM was inserted into the Immigration Rules dealing with the requirements that non-EEA family members are required to meet in order to be able to join their sponsoring partner in the UK. A sponsoring partner can be a British citizen, a settled person, a refugee or a person with humanitarian protection. The rules apply to their spouse, fiancé(e), civil partner or proposed civil partner, or a person living in a relationship akin to marriage or civil partnership for a period of at least two years.
Crucially, and of devastating effect for many thousands of couples, a new minimum income requirement was introduced. This requires the sponsoring spouse or partner (and/or the applicant if they are in the UK with permission to work) to have a gross annual income of at least £18,600, plus £3,800 for the first dependent non-EEA national child and £2,400 for each additional child. Alternatively, the couple can have savings of at least £16,000 plus two and a half times the shortfall in the sponsor’s earnings. Offers of financial support from third parties, for example parents of either party, cannot be taken into account for the purpose of the spouse visa application.
This harsh and unfair requirement, that has forced thousands of couples to live apart or live outside the UK, has been the subject of a hard fought series of legal challenges culminating in the Supreme Court ruling this week.
The outcome
Whilst ruling that in setting a minimum income requirement for spouses and partners the Government was acting lawfully in principle, the Court also found that:
- the Home Office’s rules fail to give effect to the duty of the Secretary of State to safeguard the welfare of children under section 55 of the Borders, Citizenship and Immigration Act 2009 and must be changed; and
- the Home Office’s instructions should be reconsidered in order to allow alternative funding when considering claims brought under Art 8 ECHR.
Despite the disappointing outcome to the main legal challenge, it is hoped that the Court’s judgement will force the Government to do the right thing and create a fairer system than the extremely harsh and damaging one that presently exists. Certainly, if they don’t they can expect further litigation because, quite simply, love matters too much.
How we can help
We have successfully guided a significant number of straight, gay, lesbian, transgender and bisexual couples through the application process so they can enjoy what we passionately believe is a fundamental right to live together in the UK.
In light of the Supreme Court’s ruling, applications relating to couples who have children and/or who may need to rely on alternative sources of funding will need to be prepared very carefully and the Government’s response to the judgement will need to be monitored closely.
If you require legal assistance concerning the minimum income requirement for spouses and partners, or in relation to any other UK immigration law issues, please contact us.
