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The financial (minimum income) requirementfor partner visas

Standard Note: SN/HA/06724

Last updated: 6 September 2013

Author: Melanie Gower

Section Home Affairs Section

Since 9 July 2012, applications for permission to enter/remain in the UK as the non-EEA

national partner of a British citizen, refugee or person settled here have been required to

demonstrate available maintenance funds equivalent to a minimum gross annual income of

18,600 (or higher in cases including non-EEA national dependent children).

The Immigration Rules specify which income sources can be used to satisfy the requirement

(including income from employment, private pension or cash savings), and the documents

that must be provided as evidence. In many cases only the British/settled sponsors

employment income is taken into account, because their partners employment can only be

considered if they are already in the UK with permission to work.

The Government considers that these maintenance rules will ensure that families are able to

support themselves and the migrant partners integration without being a burden on the

general taxpayer.

Various migrants rights groups are campaigning against the financial requirement, which

they consider to be unfair, disproportionate and counter-productive to the Governments

intentions. In June 2013 a report by members of the APPG on Migration called for an

independent review of the requirement and its impact. The Government does not intend to

do this. It has made some minor adjustments to the policy, but overall is satisfied that it is

operating as intended.

In July 2013 the High Court considered the lawfulness of the financial requirement. It did not

strike it down as unlawful in general, but found that certain factors in the way it is applied

represent a very significant interference with British citizens and refugees rights. It

suggested some alternative ways in which a financial requirement could be applied.

The Government is appealing against the decision. In the meantime, it has suspended theprocessing of applications that fall for refusal solely because they do not satisfy the financial

requirement rules. Processing continues as normal for applications that fall for refusal for

other reasons, and for applications that satisfy the Immigration Rules requirements.

This information is provided to Members of Parliament in support of their parliamentary duties

and is not intended to address the specific circumstances of any particular individual. It should

not be relied upon as being up to date; the law or policies may have changed since it was last

updated; and it should not be relied upon as legal or professional advice or as a substitute for

it. A suitably qualified professional should be consulted if specific advice or information is

required.

This information is provided subject to our general terms and conditions which are available

online or may be provided on request in hard copy. Authors are available to discuss the

content of this briefing with Members and their staff, but not with the general public.

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Contents

1 What are the financial (minimum income) rules? 21.1 Overview of the maintenance requirements before and after 9 July 2012 31.2

Summary of the rationale for the minimum income requirement 3

1.3 July 2012: Initial reactions to the policy 4

2 How the Rules are applied 62.1 Practical guidance for applicants 62.2 The scope for exemptions 62.3 Ways of satisfying the minimum income requirement 82.4 Some common criticisms of the rules, and counter-arguments 10

3

Opposition to the minimum income requirement 12

3.1 The Divided Families campaign 123.2 June 2013: APPG on Migrations inquiry into the impact of the new Rules 12

The Governments response: willing to consider some minor changes 134 July 2013: Legal challenges 14

4.1 How are other applications affected by the judgment? 155 Impact on application numbers 16

1 What are the financial (minimum income) rules?

The Immigration Rules requirements for leave to enter/remain as the non-EEA national

partner (spouse/fianc(e), civil partner, prospective civil partner, unmarried or same-sex

partner) or dependent child of a British citizen or person who has Indefinite Leave, Refugee

Status or Humanitarian Protection in the UK changed on 9 July 2012, as part of a broader

package of changes to the Immigration Rules for family members.1

One of the most significant changes was the introduction of a financial (minimum income)threshold in order to demonstrate adequate maintenance funds.

1 HC 194 of 2012-13; summarised in Library Standard Note SN06353 Changes to Immigration Rules for family

members.

2

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1.1 Overview of the maintenance requirements before and after 9 July 2012

Before 9 July 2012 Since 9 July 2012

Must demonstrate ability to adequately

accommodate and maintain without

recourse to public funds

With reference to Income Support levels (in

effect requiring a post-tax income of 5,500 per

year).

Must demonstrate available maintenance

funds equivalent to an income of at least

18,600per year

(plus an extra 3,800 for one dependent child

and extra 2,400 for each additional child).

A variety of income sources could be

considered, for example:

- Sponsor and/or migrant partners

employment overseas and employment

prospects in the UK

- evidence of sufficient independent

means

- support from third parties (such as

family members)

Only income sources and evidence specified in

the Immigration Rules can be taken into

account, for example:

- Sponsors earnings in the UK, overseas

and confirmed UK job offer

- migrant spouses employment income if

they are in the UK with permission to

work

- migrant spouses overseas employment

income or offers of employment in the

UK cannot be taken into account

- offers of third party support cannot

count

Relevant when applying for temporary leave toremain (after two year probationary period,

migrant partner could apply for Indefinite Leave

to Remain).

Must be satisfied at two application stagesduring a five year probationary period, and

when applying for Indefinite Leave to Remain.

1.2 Summary of the rationale for the minimum income requirement

The changes to the family migration rules (including the introduction of the minimum income

requirement) contribute to the Governments objective to reduce net migration levels from

hundreds of thousands to tens of thousands.2 However it has emphasised other policy

objectives in explaining the rationale behind the minimum income requirement.

The Government considers that family migrants and their British-based sponsors should

have sufficient financial resources to be able to support themselves and enable the migrant

to participate in society without being a burden on the general taxpayer. 3 It changed the

maintenance requirements because it did not consider that the rules in place before July

2012 were sufficient for these objectives.

2 HC Deb 15 October 2012 c90W

3 HC Deb 11 June 2012 cc48-50

3

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The minimum income threshold was set at 18,600 after the Government had considered

advice from its Migration Advisory Committee (MAC).4 The MAC had recommended a

minimum gross sponsor income threshold of between 18,600 and 25,700 per year to

sponsor a partner. The different thresholds reflected different approaches to calculating

burden on the state. The MAC estimated that around 45% of applicants would fall short of

the lower threshold amount and 64% of applicants would not satisfy the upper threshold. TheMAC emphasised that its recommendations were purely based on economic considerations,

and did not take into account wider legal, social or moral issues related to family migration.

The MAC had identified 18,600 as the level of annual gross pay at which a couple would

not receive income-related benefits (assuming weekly rent of 100).5 The Government has

said that it intends to review the level of the financial requirement annually, and that it may be

affected by the roll-out of Universal Credit.6

The higher income requirement for sponsoring a child is intended to reflect the education

and other costs arising in such cases. 7 It applies at each application stage until the migrant

partner is granted permanent settlement, even if the dependent child turns 18 before thistime (unless they have been granted an immigration status in their own right). 8 It applies to

biological children, step-children and adopted children (in certain circumstances), and

children coming for the purpose of adoption who are subject to immigration control and

applying for limited leave to enter or remain under Appendix FM or the relevant paragraphs

of Part 8 of the Immigration Rules.

The financial requirement does not apply in respect of applications from a child who:

Is a British citizen (including an adopted child who acquires British citizenship);

Is an EEA national (except where a non-EEA spouse or partner is being accompanied

or joined by the EEA child of a former relationship who does not have a right to beadmitted to the UK under the Immigration (EEA) Regulations 2006);

Is settled in the UK or who qualifies for indefinite leave to enter; or

Qualifies in a category under Part 8 of the Immigration Rules to which the

requirement does not apply.

1.3 July 2012: Initial reactions to the policy

In Parliament

Responding to the Home Secretarys oral statement on 11 June 2012, Yvette Cooper,

Shadow Home Secretary, said that Labour supported strengthening the family immigration

rules to protect UK taxpayers. However, she cast doubt on the effectiveness of the

Governments approach:

We agree that stronger safeguards are needed for the taxpayer on family migration. If

people want to make this country their home, they should contribute and not be a

4MAC, Review of the minimum income requirement for sponsorship under the family migration route,November 2011

5MAC, Review of the minimum income requirement for sponsorship under the family migration route,November 2011, para 4.50

6Home Office ,Statement of Intent: Family migration, 12 July 2012, para 80

7

Home Office ,Statement of Intent: Family migration, 12 July 2012, para 858

If the higher minimum income requirement continues to apply in respect of a child over 18, their income andsavings can be counted towards the requirement.

4

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burden on public funds, but it is not clear that the best way to protect the taxpayer is to

focus solely on the sponsors salary. For example, in the current economic climate,

someone on 40,000 today could lose their job next month, and then, of course, there

is no way to protect the taxpayer. The system does not take account of the foreign

partners income, which might have a differential impact on women. Will the Home

Secretary explain why the Government ruled out consulting on a bond that could have

been used to protect the taxpayer if someone needed public funds later on? 9In response, the Home Secretary said that a bond would only be available to those people

who had capital and were able to put up a bond in the first place.10

There was a mixed response from backbench Members to the Home Secretarys statement.

Some welcomed the changes, expressing hopes that they will tackle public concerns about

migrants (lack of) integration, sham marriages, and a lack of public confidence in the

immigration system.11

Others were more critical; several Members highlighted examples of constituency cases that

would be unable to satisfy the minimum income threshold, and raised concerns that certaingroups would be disproportionately affected, such as young people, ethnic minorities, women

and people living in low-pay areas.12 Fiona MacTaggart MP described the financial

requirement as a means test on family life, and contrasted it with the Governments

previously-stated family-friendly intentions.13

NGOs, think-tanks, academia, etc.

Initial responses to the July 2012 changes from various migrants rights and civil liberties

organisations raised concerns that they would undermine, rather than enhance, migrant

family members prospects for integration.

Several highlighted particular concerns about the minimum income threshold and the effect itwas likely to have on groups more likely to be in low-paid employment. The Family

Immigration Alliance, a forum for British/settled partners with experiences of sponsoring

partners applications, described the minimum income requirement as an act of obscene

discrimination, and argued that a precedent had been set where finance extends beyond

your quality of life, into your freedom to have a family at all.14

The Migrants Rights Network warned that the changes would introduce additional hurdles

and costs for people, particularly lower earners and were likely to be viewed more widely as

unfair as their impacts on both migrants and British people are realised.15

The Migrant Integration Policy Index (MIPEX) project, led by the British Council and the

Migration Policy Group think-tank, runs an interactive website which compares migrants

integration opportunities, based on analysis of immigration policies in over 30 countries. A

July 2012 blog post written by one of its Research Co-ordinators compared the UKs new

partner visa rules with those in place in other countries, and concluded that The UK is slowly

becoming one of the least favourable places for non-EU residents and even its own citizens

9 HC Deb 11 June 2012 cc50-1

10 HC Deb 11 June 2012 cc51-2

11 HC Deb 11 June 2012 c54, c57

12 HC Deb 11 June 2012 c54, c59

13

HC Deb 11 June 2012 c5814Family Immigration Alliance, Family Immigration Rules announced, 11 June 2012

15Migrants Rights Network, Government changes to the family migration rules MRN e-briefing, June 2012

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to reunite with their families. It cautioned that the minimum income requirement might

undermine migrants integration prospects:

A high income threshold does not effectively promote long-term economic participation,

education, language learning, or fighting forced marriages. Instead, such requirements

have a disproportionate impact on limiting the number of family reunions, especially for

low-income and vulnerable groups. For many, family life becomes harder or impossible

through enforced separation. TheOECD findsthat every extra year that child spendsin country of origin and not in country of destination has a negative impact on their

language learning and societal adjustment. The OECDs conclusion is that family

reunion should be facilitated as soon as possible. British policy actors must strictly

scrutinise whether the new family reunion requirements exacerbate some of the very

problems that they are supposed to address.16

On the other hand, Migration Watch issued a brief statement welcoming the changes, which

it considered would enhance family migrants prospects for integration.17

2 How the Rules are applied

2.1 Practical guidance for applicants

The content (and format) of the Immigration Rules for family members of British/settled

persons who wish to join them in the UK are complex. They are spread between Part 8 and

Appendix FM and FM-SE of the Immigration Rules. Paragraphs A277 - A279 of the

Immigration Rules set out which parts of the Rules apply to pre- and post- 9 July 2012

spouse/fianc(e)/partner visa applicants.

The Partners and families section on the UK Border Agency website links to further pages

with guidance about the Immigration Rules requirements for persons applying under thevarious different family immigration categories. It includes a section for family of British

citizens and settled persons which includes links to detailed information about how the

financial requirement can be met.

Applicants are also directed to read the guidance used by Home Office caseworkers.

Chapter 8 Appendix FM (family members) of the Immigration Directorate Instructions

deals with the rules for applications made on or after 9 July 2012 - in particular, Annex FM

1.7 Financial requirement and Annex 1.7a Maintenance discuss in detail how the minimum

income requirement is applied.

The Immigration Law Practitioners Association has produced several information sheets onthe changes to the family migration rules and related developments. However, as always,

constituents seeking advice specific to their circumstances should consult a suitably qualified

professional. The website of the Office of the Immigration Services Commissionerexplains

about the regulation of immigration advisers and includes a useful online adviser finder.

2.2 The scope for exemptions

Persons granted leave to remain in a family immigration category before 9 July 2012 remain

covered by the Immigration Rules in force prior to that date. They are not subject to the

minimum income requirement.18

16MIPEX Blog, Cant Buy Me Love, 6 July 2012

17Migration Watch, press release, Comment by Kiran Bali on Changes to Family Migration, 11 June 2012

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For applications submitted on or after 9 July 2012, there is no scope to make exceptions to

the minimum income requirement where the Immigration Rules require that it is satisfied. It

applies when the migrant is first applying for temporary immigration leave to remain as a

family member, when they apply to renew their temporary immigration status, and after five

years, when they become eligible to apply for Indefinite Leave to Remain.

However, the minimum income requirement does not apply if the UK-based sponsor is in

receipt of Disability Living Allowance, Severe Disablement Allowance, Industrial Injuries

Disablement Benefit, Personal Independence Payment, Attendance Allowance, or Carers

Allowance. Instead, the adequate maintenance requirements in the previous version of the

Immigration Rules must be satisfied - namely, that after deduction of income tax, national

insurance contributions and housing costs,there is a level of income available to the family

which is equivalent to Income Support levels.19 However, the minimum income requirement

will apply in subsequent applications if the sponsors circumstances have changed. In March

2013 the Government confirmed that a review of the exemptions for sponsors who are

disabled or carers was ongoing and would be concluded shortly, and that affected persons

should not assume that the exemption would necessarily remain after April 2013.20

Howeverthese exemptions remain in place to date.

Applications sponsored by a member of HM Armed Forces personnel were also initially

exempt from the minimum income requirement and continued to be assessed against the

pre-9 July 2012 Immigration Rules requirements.21 However, the minimum income

requirement will apply in Armed Forces applications from 1 December 2013. A Home Office

Statement of Intent, published on 4 July 2013, provides some initial details of how this will

work.22 The main difference with non-Armed Forces cases is that partners in Armed Forces

cases will initially be given leave to remain for five years (rather than two and a half years as

is the case for civilian cases). This will affect the way in which the couples cash savings are

calculated, if they choose to rely on such savings in order to meet the minimum incomerequirement.

Why dont the Rules affect family members of EEA nationals?

The rights of EU/EEA nationals and their family members to come to the UK derive from

European law (specifically,Directive 2004/38/EC, often referred to as the Citizens Directive

orFree Movement of Persons Directive).23

Non-EEA nationals, including family members of British citizens, are subject to the UKs

Immigration Rules. The Immigration Rules do not have to mirror European law, and indeed it

has long been the case that they have contained more restrictive eligibility criteria for family

members than European law. The financial requirement is the latest example of such adifference - EU law does not specify a minimum income or specific level of resources that the

18Further information can be found in Paragraphs A277 - A279 of the Immigration Rules and the ImmigrationDirectorate InstructionsChapter 8 family members transitional arrangements.

19The guidance states applicants cannot rely on offers of support from third parties. Home Office, ImmigrationDirectorate Instructions, Chapter 8 Appendix FM (Family members), Annex FM section FM 1.7A (accessedon 6 September 2013)

20 HC 1039 of 2012-13

21 HC Deb 11 June 2012 c60

22Home Office, Family members of HM Forces statement of intent: Changes to the Immigration Rules fromDecember 2013, 4 July 2013

23 Transposed into domestic legislation by the Immigration(European Economic Area) Regulations 2006, SI2006/1003 (as amended). EEA and Swiss nationals have similar rights due to bilateral agreements with theEU.

7

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EEA national must have in order for their non-EEA family member to join them in the host

Member State.

Migration Watch has called for financial eligibility criteria to be applied to non-EEA national

family members of EU citizens living in the UK in a similar way as is the case under the

Immigration Rules.

24

Chris Bryant, Shadow Immigration Minister, has also described thedifference between EU law and the UKs Immigration Rules as a significant loophole and

suggested that this requires concerted EU action.25

Although the UK is an EU Member State, EEA citizens are not generally considered to be

exercising free movement rights granted by European law whilst they are living in their own

country, and therefore their non-EEA family members cannot join them using the provisions

in EU free movement law. However, following the European Court of Justices decision in

the Surinder Singh case, an exception is made if the EEA citizen has been exercising their

free movement rights as a worker or self-employed person in another EU Member State but

then wishes to return to their country of nationality with their family member. 26 In these

circumstances the non-EEA national spouse may be treated as the family member of an EEAcitizen in accordance with EU free movement law, rather than being subject to the countrys

national immigration law.27

There is anecdotal evidence to suggest that some British citizens - particularly those who

cannot satisfy the UKs visa requirements - are deciding to temporarily live and work in

another EU Member State, in order to be able to return to the UK with their non-EU partner

under European law instead of applying for a visa under the Immigration Rules.28

2.3 Ways of satisfying the minimum income requirement

Only income from sources that are specified in Appendix FM-SE of the Immigration Rules

can be considered when assessing whether an application satisfies the minimum incomerequirement.29 The Home Offices Immigration Directorate Instructions summarise the five

acceptable income sources:

Income from salaried or non-salaried employment of the partner (and/or the

applicant if they are in the UK with permission to work). This is referred to as

Category A or Category B, depending on the employment history. See section

5 of this guidance.

Non-employment income, e.g. income from property rental or dividends from

shares. This is referred to as Category C. See section 6 of this guidance.

Cash savings of the applicants partner and/or the applicant, above 16,000,held by the partner and/or the applicant for at least 6 months and under their

control. This is referred to as Category D. See section 7 of this guidance.

State (UK or foreign) or private pension of the applicants partner and/or the

applicant. This is referred to as Category E. See section 8 of this guidance.

24Migration Watch briefing 4.22, Family permits for EU citizens in Britain, 9 May 2013

25Labour.org.uk, Effective action on immigration not offensive gimmicks - Chris Bryant, 12 August 2013

26ECJ, C-370/90

27

UKBA, Entry Clearance Guidance, EUN2,14 - EEA family permits, (undated; accessed on 6 September 2013)28BBC News [online], The Britons leaving the UK to get their relatives in, 25 June 2013

29 HC 194 of 1993-4 as amended

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Wage slips covering 6 or 12 months prior to the date of the application (depending on

the length of employment); and

A letter from the employer(s) who issued the wage slips, confirming the person's

employment and gross annual salary; the length of their employment; the period over

which they have been or were paid the level of salary relied upon in the application;and the type of employment (permanent, fixed-term contract or agency); and

Personal bank statements corresponding to the same period(s) as the wage slips,

showing that the salary has been paid into an account in the name of the person or in

the name of the person and their partner jointly.

The guidance states that in addition, P60(s) for the relevant period(s) of employment (if

issued) and a signed contract(s) of employment may also be submitted or requested by the

decision-maker, in respect of paid employment in the UK.

If cash savings are being used to meet or contribute to the minimum income requirement,

they must have been held by the applicant, their partner or both jointly and under theircontrol, and for at least the six months prior to the date of application. The first 16,000 in

cash savings are not taken into account. This is because 16,000 is the level at which a

person generally ceases to be eligible for income-related benefits. When applying for

temporary leave to remain, the amount of cash savings that can be counted towards the

income requirement is calculated by dividing the amount of savings over 16,000 by 2.5 (this

is equivalent to the number of years of temporary leave being applied for). When applying

for Indefinite Leave to Remain (after five years), all cash savings over 16,000 can be

considered.

In practice, therefore, when applying for temporary leave as a partner:

62,500 in cash savings is required if no other income sources are being used to

meet the income requirement: (62,500-16,000) / 2.5 = 18,600

17,500 in cash savings is required if the sponsors income is 18,000, in order to

make up the 600 shortfall: (17,500-16,000) / 2.5 = 600

Some changes have been made to the Immigration Rules and policy guidance, in response

to calls for greater flexibility.31 For example, in April some flexibility was introduced about the

length of time that cash savings arising from the realisation of an asset must be held, and it

was confirmed that academic stipends or maintenance grants can be counted as income. It

was also confirmed that caseworkers have the discretion to contact applicants to requestfurther information or documentation before making a decision on the application.

2.4 Some common crit icisms of the rules, and counter-arguments 32

Is the threshold set too high?

UKBA case file analysis cited in the Home Offices Impact Assessment suggested that

around 45% of sponsors sampled were not in employment or earned less that 18,600 per

31 HC 1039 of 2012-13; HC 628 of 2013-15

32For relevant sources see, for example, APPG Migration, Report of the Inquiry into new Family MigrationRules, June 2013; HC Deb 19 June 2013 cc254-279WH; HL Deb 4 July 2013 cc1385-1406; Home Office

Impact Assessment IA No. HO0065 Changes to family migration rules, 12 June 2012; Home Office, Letterfrom Lord Taylor of Holbeach to Baroness Hamwee, 5 August 2013, DEP2013-1434

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annum. It also noted that the Annual Survey for Hourly Earnings indicated that around 40 -

45% of UK residents earn less than 18,600. The adult minimum wage for a 40 hour week is

currently equivalent to 12,875.20 per annum.

The Government has said that 18,600 is the income level at which a couple generally cease

to be eligible for income-related benefits. Its Impact Assessment suggested that a proportionof persons earning less than this would still be eligible to sponsor a partner visa - for

example, if they are in receipt of certain welfare benefits and therefore exempt from the

requirement, or if they and their partner have appropriate sources of non-employment

income, or if they increase their working hours or skills in order to earn a higher income.

Should the income threshold take regional differences into account?

Some have argued that there should be variable income thresholds to reflect differences in

wages and living costs across the UK (and overseas).

The MACs report to the Government did not consider these arguments in detail, but said that

it did not see a clear case for differentiation.33 The Government shares the MACs concerns.

It believes that a single national threshold provides clarity and simplicity for applicants and

Home Office staff. It has also pointed out that the benefit system is not regionalised (with the

exception of housing benefits) in spite of regional differences in wages and costs of living.

The Government also argues that regional thresholds would be difficult to enforce, since

there would be a risk that some sponsors would temporarily move to an area with a lower

income threshold until the visa had been granted. Another concern is that families who had

to move for other reasons, or who lived in a relatively poor part of an affluent region (or vice

versa) might be unfairly dis/advantaged by differential thresholds.

Are the evidential requirements unduly restr ic tive?

Critics have highlighted examples of inflexibility in the way in which the minimum incomethreshold is assessed. For example, there is no scope to reduce or waive the minimum

income threshold if a couple has reduced costs of living due to offers of third-party support

(such as accommodation provided by relatives), or to take into account an applicants high

earnings overseas or job offers in the UK, or cash savings below 16,000 or which have not

been held for six months.

The Government has argued that offers of third party support are vulnerable to changes in

circumstances or relationships. Furthermore, it argues that employment overseas,

employment prospects in the UK or promises of employment are no guarantee to getting a

job. It has suggested that if a migrant partner has a confirmed job offer in the UK, they could

apply under Tier 2 of the points-based system instead, although it has acknowledged that theeligibility criteria for Tier 2 visas would rule this out in some cases. It also argues that there

are some permitted income sources which allow the migrant partners non-employment

income to be taken into account.

It has said that at least six months evidence of cash savings is necessary in order to ensure

that they are genuinely under the couples control and not the product of a short-term loan,

and that it is reasonable to expect applicants to organise their finances in accordance with

the requirements of the Immigration Rules.

33MAC, Review of the minimum income requirement for sponsorship under the family migration route,November 2011, paras 4.43-4.44

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Is the minimum income requirement saving money or leading to unforeseen costs?

Some families affected by the rules have argued that they undermine the Governments

objectives to promote self-sufficiency and family unity. There have been accounts of families

enduring prolonged periods of separation due to not being able to satisfy the minimum

income requirement. For example, if a British citizen returns to the UK to find a job at the

appropriate minimum income threshold, they will need to work for at least six months beforethey can sponsor the application. It has also been argued that some families have needed

recourse to public funds, which they would not have needed if the migrant partner was able

to join them in the UK and share the sponsors work and caring responsibilities.

The Home Offices Impact Assessment estimated the minimum income requirement would

bring an overall net benefit of 660million over ten years. This estimate included

consideration of the reduction in direct tax revenue from working migrant partners, and

savings in healthcare, education and welfare.

Middlesex University has argued that the Government did not take into account the loss of

the wider economic benefits of migrant partners economic activity. Using an alternativemodel for calculations based on the figures in the Governments Impact Assessment, it has

suggested that the changes could cost the UK 850million over ten years. 34 The

Government does not accept these conclusions.35

3 Opposition to the minimum income requirement

3.1 The Divided Families campaign

Various civil society organisations are involved in a Divided Families campaign against the

minimum income requirement. The Joint Council for the Welfare of Immigrants and the

Migrants Rights Network are taking prominent roles, and groups such as BritCits and the

Family Immigration Alliance have established platforms for persons affected by the rules

changes to share information and personal experiences.36

3.2 June 2013: APPG on Migrations inquiry into the impact of the new Rules

In June 2013 a committee of members of the All-Party Parliamentary Group (APPG) on

Migration37 published a report of their inquiry into the impact of the family migration rules

changes.38 The inquiry focussed on the impact of the minimum income requirement for

partner visas, and other changes affecting adult dependent relatives (not discussed in this

note). Over 280 submissions of evidence were received, over half of which were from

families affected by the rules.39

The report recommended that the Government commission an independent review of the

minimum income requirement and its impacts, to consider whether the level of the income

requirement and the range of permitted income sources represent an appropriate balance

34Middlesex University, The fiscal implications of the minimum income requirement: what does the evidence tellus? July 2013

35 HL Deb 24 July 2013 cWA248

36See, for example, JCWI website United by love, divided by Theresa May (accessed 6 September 2013);MRN briefing, What are the consequences of minimum income requirement for family migrants in the UK?,28 July 2013

37

Migrants Rights Network provides the secretariat to the APPG on Migration.38APPG Migration, Report of the Inquiry into new Family Migration Rules, June 2013

39APPG on Migration, Family inquiry (undated; accessed on 6 September 2013)

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between the different interests in this area.40 The Government has rejected this idea, stating

that it is satisfied that the family Immigration Rules are operating as intended but that it will

keep their impact under review.41

The committee had found that the minimum income requirement had resulted in some British

citizens and permanent residents being separated from their non-EEA nationalpartner/children, including sponsors who were in full-time employment and earning above the

minimum wage. Submissions of evidence suggested that sponsors based outside London

and the South East, and in lower-earning sections of the population (including women, young

adults, the elderly and some ethnic minority groups) had been particularly affected. It

received evidence suggesting that there had been some unforeseen costs to the public purse

as a result of non-EEA national partners exclusion from the UK, such as UK-based sponsors

having increased recourse to welfare benefits, and a loss of potential tax revenue from non-

EEA partners future earnings.

In addition, the committee contended that the limited range of income sources which can be

taken into account appear to have delayed or prevented some families from living together inthe UK, including high income/high net worth individuals.

The UKs four Childrens Commissioners endorsed the report, and particularly its

recommendation that the Immigration Rules should ....ensure that children are supported to

live with their parents in the UK where their best interests require this.42 In June 2013 they

published a briefing which summarises the UKs obligations in domestic and international law

and their concerns about how the new family migration rules have impacted on childrens

rights to family life.43

The Governments response: willing to consider some minor changes

Following the publication of the APPGs report, a related Westminster Hall debate about the

effects of the new family migration rules took place on 19 June 2013.44 A similar debate took

place in the House of Lords on 4 July 2013.45

During the debate in the Commons, Mark Harper, Minister for Immigration, indicated a

willingness to consider whether there is scope to introduce greater flexibility in the evidential

requirements, such as in cases where the migrant partner has a job offer:

I am prepared to consider whether we can put in place some rules that are not

vulnerable to abuse. The best argument was the example of a couple, one of whom

would be working here but was insufficiently skilled to meet the criteria to apply under

the tier 2 scheme. (...) If people can get here under a tier 2 visa, that is fine. However,

clearly there are people who could make a contribution but could not meet thosecriteria.

The situation is not quite as straightforward as people say, because we must guard

against abuse. If all people have to do is to show a piece of paper saying that they

have a job offer, I know from the number of cases I have seen that it will not be long

before people are setting up vague companies and offering jobs that do not exist.

40APPG Migration, Report of the Inquiry into new Family Migration Rules, June 2013, p.35

41 HL Deb 26 June 2013 ccWA147-8

42APPG Migration, Report of the Inquiry into new Family Migration Rules, June 2013, p.35

43Childrens Commissioners, The UK Childrens Commissioners briefing on the All-Party Parliamentary Group

on Migration: Report of the Inquiry into the New Family Migration Rules, June 201344 HC Deb 19 June 2013 cc254-279WH

45 HL Deb 4 July 2013 cc1385-1406

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There must be a way of putting in place processes that do not lead to abuse. I think

that is worth doing and I am prepared to go away and do so. 46

4 July 2013: Legal challenges

Two British citizens and a refugee, who wished to sponsor their non-EEA national partners to

join them in the UK but could not satisfy the financial requirement, have challenged the

maintenance requirements through judicial review.

Judgment was given in the High Court by Mr Justice Blake on 5 July 2013. 47 The rules were

not found to be unlawfully discriminatory, for example against female sponsors or those living

outside London and the South-East. Nor were they deemed to be unlawful on the grounds

that they failed to make an over-riding accommodation of the best interests of the child.

The court found that the rules had legitimate aims (to promote the economic and social

welfare of the whole community, facilitate integration, and provide clarity and transparency),

and were rationally connected with those. It determined that the Home Secretary was

justified in concluding that greater maintenance resources were needed in pursuit of these

aims than the rules had previously required.

It also recognised that there might be legitimate and proportionate restrictions on the

admission of foreign spouses, and that financial self-sufficiency of a foreign family is a

legitimate consideration.

However, the court highlighted several features of the maintenance requirements applied

since July 2012 that led it to believe that that the scale of the interference with British

citizens rights is very significant. It concluded that, when applied to cases sponsored by a

British citizen or refugee, the Immigration Rules relating to the 18,600 minimum incomerequirement were so onerous as to be an unjustified and disproportionate interference with

a genuine spousal relationship:

123. Although there may be sound reasons in favour of some of the individual

requirements taken in isolation, I conclude that when applied to either recognised

refugees or British citizens the combination of more than one of the following five

features of the rules to be so onerous in effect as to be an unjustified and

disproportionate interference with a genuine spousal relationship. In particular that it

likely to be the case where the minimum income requirement is combined with one or

more than one of the other requirements discussed below. The consequences are so

excessive in impact as to be beyond a reasonable means of giving effect to the

legitimate aim.

124. The five features are:

i. The setting of the minimum income level to be provided by the sponsor at above the

13,400 level identified by the Migration Advisory Committee as the lowest

maintenance threshold under the benefits and net fiscal approach (Conclusion 5.3).

Such a level would be close to the adult minimum wage for a 40 hour week. Further

the claimants have shown through by their experts that of the 422 occupations listed in

the 2011 UK Earnings Index, only 301 were above the 18,600 threshold.

46 HC Deb 19 June 2013 c277-8WH

47 MM & Ors v Secretary of State for the Home Department [2013] EWHC 1900 (Admin)

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ii. The requirement of 16,000 before savings can be said to contribute to rectify an

income shortfall.

iii. The use of a 30 month period for forward income projection, as opposed to a twelve

month period that could be applied in a borderline case of ability to maintain.

iv. The disregard of even credible and reliable evidence of undertakings of third partysupport effected by deed and supported by evidence of ability to fund.

v. The disregard of the spouse's own earning capacity during the thirty month period of

initial entry.

Mr Justice Blake considered that there is a wider margin of appreciation available to the

Home Secretary in cases involving a non-EEA national sponsor, observing that case law has

generally found that there is no particular reason why non-EEA nationals preferred place of

residence must be facilitated by the Immigration Rules. However, the position is different for

refugees and British citizens. British citizens have a fundamental right of constitutional

significance recognised by the common law to reside in their own country, which is

interfered with if their foreign spouse is excluded from the UK. Refugees are also in a

different position to other non-EEA nationals, since they are unable to reside in their country

of nationality, and are compelled to reside in a host state.

The determination went on to suggest some less intrusive ways in which a financial

requirement might be applied:

147. There are a variety of less intrusive responses available. They include:

i. reducing the minimum income required of the sponsor alone to 13,500; or

thereabouts;

ii. permitting any savings over the 1,000 that may be spent on processing the

application itself to be used to supplement the income figure;

iii. permitting account to be taken of the earning capacity of the spouse after entry or

the satisfactorily supported maintenance undertakings of third parties;

iv. reducing to twelve months the period for which the pre estimate of financial viability

is assessed.

However, the Rules were not struck down as unlawful in general, and Mr Justice Blake noted

that it is up to the Home Secretary to consider whether to make changes in light of the

judgment.

4.1 How are other applications affected by the judgment?

The Home Office immediately put on hold consideration of applications whilst it assessed the

implications of the judgment and whether to appeal.48 On 26 July 2013 it confirmed that it

had appealed against the High Courts judgment.49 Although it has asked the Court of

Appeal to expedite the appeal, it could still take several months or more until it is heard.

A letter dated 6 August from Lord Taylor, Home Office Minister, summarised the

Governments position:

48UKBA update, Minimum income threshold for family migrants, 5 July 2013

49UKBA update, Minimum income threshold for family migrants, 26 July 2013

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... matters of public policy, including the detail of how the income threshold should

operate, are for the Government and Parliament to determine, not the Courts. We also

believe that the detailed requirements of the policy, which reflect extensive consultation

and consideration, are proportionate to its aims.50

Consideration of applications that fall for refusal solely because they do not satisfy the

financial requirement continues to be suspended until the Home Offices appeal has beenfinally resolved. However, processing continues as normal for applications that do meet all

the Immigration Rules requirements, or that fall for refusal for other reasons. An update

posted on the UKBA website provides further information which may be of use to applicants,

including guidance for persons who still wish to submit an application, and details of how

persons whose applications have been suspended can withdraw their application or request

the return of their travel documents.51

5 Impact on application numbers

The Home Offices Impact Assessment estimated that the financial requirement would lead

to a 36 - 46% reduction in volumes of visas granted (i.e. out-of-country applications). 52 It

anticipated a smaller (10 - 20%) reduction in volumes of applications granted in-country (e.g.

when the foreign spouse is switching from a different immigration category, or applying for

the further period of temporary leave as a spouse/partner). This is because the foreign

spouses employment income could also be taken into account in these cases.

Table 2: Estimated impact of minimum income threshold on visa grants and

applications per annum

Family route

numbers(roundedto 000)

Pre-policy Grant

annual volumes

Introduction of

new minimumincomethreshold

Reduction in

family route visagrants perannum

Associated

reduction inapplications

Family visas 47,300 in 2012.

45,700 in 2013

onwards

-36% to -46%

(-41%)

13,600 to 17,800

(15,700)

17,400 to 21,800

(19,500)

Source and Notes: Home Office Science calculations53

Lord Taylor provided a snapshot of recent application statistics during a July 2013 Lords

debate on the impact of the family Immigration Rule changes:

The number of partner and other family route entry clearance visas issued in the year

ending March 2013 is 37,470. It has fallen by 16% compared with the year ending

March 2012.54

Statistics on numbers of visas granted to partners in recent years were provided in answer to

a PQ in August 2013:

Keith Vaz: To ask the Secretary of State for the Home Department how many spousal

visas were granted in each year since 2008.

50Home Office, Letter from Lord Taylor of Holbeach to Baroness Hamwee, 5 August 2013, DEP2013-1434

51UKBA update, Minimum income threshold for family migrants, 26 July 2013

52

Home Office Impact Assessment, Changes to Family Migration Rules IA NO: HO0065, 12 July 2012, p. 1953Home Office Impact Assessment, Changes to Family Migration Rules IA NO: HO0065, 12 July 2012, p.20

54 HL Deb 4 July 2013 c1405

16

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7/27/2019 Sn 06724

17/17

Mr Harper: The latest published figures for partner visas issued under the family route

are given in the following table:

Entry clearance visas issued to those entering as partners1

through the Family route,

2008 to 2012

Visas issued

2008 45,099

2009 39,556

2010 40,466

2011 34,832

2012 31,541

Notes: 1. Includes visas issued for a probationary period and for immediate settlement.

From July 2012, it also includes post flight partners joining those who have been

granted refugee status or humanitarian protection but who have yet to apply for or be

granted settlement. 2. It is not possible from the published statistics to distinguish

between those granted visas under the old family rules and those granted visas under

new family rules implemented since 9 July 2012. Source: Table be_04. Immigration

Statistics, January to March 2013

The latest Home Office immigration statistics, including those for entry clearance visas,

are published in the release Immigration Statistics January to March 2013, which is

available from the Library of the House and on the Department's website at:

https://www.gov.uk/government/organisations/home-office/series/immigration-

statistics-quarterly-release55

55 HC Deb 29 August 2013 cc974-5W

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