Supreme Court backs immigration income threshold

Date: 7th March 2017
Category: Other human rights treaties and mechanisms

The Supreme Court has ruled that a minimum income threshold restricting the ability of non-European Economic Area nationals to enter the UK is lawful, despite acknowledging that the requirement causes significant hardship for thousands of couples.

In a judgment handed down on 22 February 2017, the Supreme Court said the fact that a rule causes hardship to many did not necessarily mean it was unlawful. It said the threshold was rationally connected to the government's legitimate aim of ensuring that a couple had sufficient resources to play a full part in British life without recourse to benefits.

The immigration rules were amended in 2012 to establish new entry requirements for non-EEA applicants to join their spouses or civil partners in the UK. These included a minimum income requirement (MIR) of at least £18,600 a year with additional sums for dependent children, to be satisfied by the sponsoring spouse or civil partner.

The judgment states: 'There can be no doubt that the MIR has caused, and will continue to cause, significant hardship to many thousands of couples who have good reasons for wanting to make their lives together in this country, and to their children.'
Stuart McWilliams, senior associate in the immigration team at Scottish firm Morton Fraser, said today's judgment will lead to further uncertainty for individuals affected by the £18,600 threshold.

McWilliams said: 'The group most likely to benefit from any amendments are applicants with children who are currently separated from a parent due to the financial requirement.

'In these cases we can expect decision-makers to be given a discretion to consider a wider range of factors, including offers of financial support from friends and family members. There is still no guarantee of success for these families and specialist advice will be required to ensure the best chance of success.'

The court recognised that the rules will have "a particularly harsh effect" on many families beyond those involved in the case, but that this did not mean that the policy was illegal or violated the European Convention of Human Rights.

The court did find, however, that the rules and guidance covering decisions on whether to allow a partner to enter the UK do not take account of the duty to safeguard and promote the welfare of children. The decision does not undermine the minimum income requirement as a whole, but the government must now amend its immigration rules and guidance to ensure that the best interests of children are taken into account in these immigration decisions. It remains to be seen how these changes will affect children.