The financial (minimum income) requirement

for partner visas

Standard Note: SN/HA/06724
Last updated: 17 July 2014
Author: Melanie Gower
Section Home Affairs Section


In July 2012 controversial new maintenance funds requirements were introduced for
spouse/partner visas (affecting non-EEA national partners of British citizens, refugees and
people settled in the UK).
In effect, these require visa applicants to have available funds equivalent to a minimum gross
annual income of 18,600 (or higher in cases including non-EEA national dependent
children). In many cases only the British/settled sponsors employment income can be
considered, because the non-EEA nationals employment can only be taken into account if
they are already in the UK with permission to work.
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 has made some minor adjustments to the policy, but overall is satisfied that
it is operating as intended. It considers that the maintenance rules ensure that families are
able to support themselves and the migrant partners integration without being a burden on
the general taxpayer.
The lawfulness of the rules has been challenged in the courts. In July 2013 the High Court
found that certain factors in the way the financial requirement is applied represent a very
significant interference with British citizens and refugees rights. It suggested some
alternative ways of applying a financial requirement. However, on 11 July 2014 the Court of
Appeal overturned the High Courts decision, following an appeal brought by the
Government.
It is possible that a further appeal will be made to the Supreme Court. In the meantime, the
minimum income requirement remains in force. UK Visas and Immigration are resuming
consideration of applications that had been put on hold pending the outcome of the Court of
Appeal case.
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.
2
Contents
1 What are the financial (minimum income) rules? 2
1.1 Overview of the maintenance requirements before and after 9 July 2012 3
1.2 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 6
2.1 Practical guidance for applicants 6
2.2 The scope for exemptions 6
Why dont the Rules affect European migrants? 7
2.3 Ways of satisfying the minimum income requirement 9
2.4 Some common criticisms of the rules, and counter-arguments 11
3 Opposition to the minimum income requirement 13
3.1 June 2013: APPG on Migrations inquiry into the impact of the new Rules 13
The Governments response: willing to consider some minor changes 14
4 Legal challenges 14
4.1 July 2013: High Court 14
4.2 Court of Appeal: July 2014 16
4.3 What happens next? 17

1 What are the financial (minimum income) rules?
The Immigration Rules requirements for leave to enter/remain as the non-EEA
1
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.
2

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



1
EEA European Economic Area (comprised of EU Member States plus Iceland, Norway and Liechtenstein).
Swiss nationals have similar rights as EEA nationals.
2
HC 194 of 2012-13; summarised in Library Standard Note SN06353 Changes to Immigration Rules for family
members.
3
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 the applicant
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
18,600 per 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, or
sponsors overseas earnings and
confirmed job offer in the UK
- 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, and
offers of third party support cannot be taken
into account.
The requirement was relevant when applying
for temporary leave to remain (after a two year
probationary period, the migrant partner could
apply for Indefinite Leave to Remain).
The requirement must be satisfied at two
application stages (during 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.
3
However the Government 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.
4
It changed the
maintenance requirements because it did not consider that the rules in place before July
2012 were sufficient for these objectives.
The minimum income threshold was set at 18,600 after the Government had considered
advice from its Migration Advisory Committee (MAC).
5
The MAC had recommended a


3
HC Deb 15 October 2012 c90W
4
HC Deb 11 June 2012 cc48-50
5
MAC, Review of the minimum income requirement for sponsorship under the family migration route,
November 2011
4
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. The
MAC 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).
6
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.
7

The higher income requirement for sponsoring a child is intended to reflect the education
and other costs arising in such cases.
8
It applies at each application stage until the migrant
partner is granted permanent settlement, even if the dependent child turns 18 before this
time (unless they have been granted an immigration status in their own right).
9
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 be
admitted to the UK under the Immigration (EEA) Regulations 2006);
Is settled in the UK or qualifies for indefinite leave to enter; or
Qualifies in a category under Part 8 or Appendix Armed Forces of the Immigration
Rules which is not subject to the financial requirement.
10

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
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,


6
MAC, Review of the minimum income requirement for sponsorship under the family migration route,
November 2011, para 4.50
7
Home Office ,Statement of Intent: Family migration, 12 July 2012, para 80
8
Home Office ,Statement of Intent: Family migration, 12 July 2012, para 85
9
If the higher minimum income requirement continues to apply in respect of a child over 18, their income and
savings can be counted towards the requirement.
10
Home Office, Immigration Directorate Instructions, Chapter 8 Appendix FM (family members), Annex FM 1.7
Financial requirement, April 2014
5
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?
11

In 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.
12

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.
13

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 certain
groups would be disproportionately affected, such as young people, ethnic minorities, women
and people living in low-pay areas.
14
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.
15

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 it
was 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.
16

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.
17

The Migrant Integration Policy Index (MIPEX) project, which is led by the British Council and
the Migration Policy Group think-tank, runs an interactive website comparing migrants
integration opportunities. It is 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
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
to reunite with their families. It cautioned that the minimum income requirement might
undermine migrants integration prospects:


11
HC Deb 11 June 2012 cc50-1
12
HC Deb 11 June 2012 cc51-2
13
HC Deb 11 June 2012 c54, c57
14
HC Deb 11 June 2012 c54, c59
15
HC Deb 11 June 2012 c58
16
Family Immigration Alliance, Family Immigration Rules announced, 11 June 2012
17
Migrants Rights Network, Government changes to the family migration rules MRN e-briefing, June 2012
6
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. The OECD finds that every extra year that child spends
in 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.
18

On the other hand, Migration Watch issued a brief statement welcoming the changes, which
it considered would enhance family migrants prospects for integration.
19


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 Family visas section on the GOV.UK website has general information for non-EEA
nationals about applying to join or remain in the UK with a British/settled partner. It also links
to the detailed policy guidance about the financial requirement and other eligibility criteria
which is used by UK Visas and Immigration (UKVI) caseworkers when deciding
applications.
20

The Immigration Law Practitioners Association has produced several information sheets on
the changes to the family migration rules and related developments. As always, constituents
seeking advice specific to their circumstances should consult a suitably qualified
professional. The website of the Office of the Immigration Services Commissioner explains
about the regulation of immigration advisers and includes a useful online adviser finder.
2.2 The scope for exemptions
People 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.
21

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


18
MIPEX Blog, Cant Buy Me Love, 6 July 2012
19
Migration Watch, press release, Comment by Kiran Bali on Changes to Family Migration, 11 June 2012
20
Home Office, Immigration Directorate Instructions, Chapter 8 Appendix FM (family members). In particular,
Annex FM 1.7 Financial requirement and Annex 1.7a Maintenance discuss in detail how the minimum
income requirement is applied.
21
Further information can be found in Paragraphs A277 - A279 of the Immigration Rules and the Immigration
Directorate Instructions Chapter 8 family members transitional arrangements.
7
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 the following benefits:
Disability Living Allowance; Severe Disablement Allowance, Industrial Injuries
Disablement Benefit, Personal Independence Payment, Attendance Allowance, or
Carers Allowance.
Instead, they must demonstrate that they have adequate maintenance funds in place, in
line with the pre- July 2012 requirements.
22
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.
23
However
these exemptions remain in place to date.
Applications sponsored by a member of HM Armed Forces personnel were initially exempt
from the minimum income requirement and continued to be assessed against the pre-9 July
2012 Immigration Rules requirements.
24
However, they became subject to the minimum
income requirement on 1 December 2013.
25
The main difference with non-Armed Forces
cases is that partners in Armed Forces cases are initially given leave to remain for five years
(rather than two and a half years as is the case for civilian cases). This affects the way in
which the couples cash savings are calculated, if they choose to rely on such savings in
order to meet the minimum income requirement.
People in receipt of certain payments related to service in HM Armed Forces (under the
Armed Forces Compensation Scheme or War Pensions Scheme) are exempt from the
minimum income requirement.
26

Why dont the Rules affect European migrants?
The rights of EU/EEA (hereafter, EEA)
27
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 or Free Movement of Persons Directive).
28

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 a
difference - EU law does not specify a minimum income or specific level of resources that the


22
The guidance states applicants cannot rely on offers of support from third parties. Home Office, Immigration
Directorate Instructions, Chapter 8 Appendix FM (Family members), Annex FM section FM 1.7A, April 2013
23
HC 1039 of 2012-13
24
HC Deb 11 June 2012 c60
25
HC 803 of 2013-14; see also Home Office, Family members of HM Forces statement of intent: Changes to the
Immigration Rules from December 2013, 4 July 2013
26
HC 803 of 2013-14
27
EEA European Economic Area (comprised of EU Member States plus Iceland, Norway and Liechtenstein.
28
Transposed into domestic legislation by the Immigration (European Economic Area) Regulations 2006, SI
2006/1003 (as amended). EEA and Swiss nationals have similar rights due to bilateral agreements with the
EU.
8
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.
29
Chris Bryant, then Shadow Immigration Minister, also described the
difference between EU law and the UKs Immigration Rules as a significant loophole and
suggested that it requires concerted EU action.
30

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.
31
In these
circumstances the non-EEA national spouse may be treated as the family member of an EEA
citizen in accordance with EU free movement law, rather than being subject to the countrys
national immigration law.
32

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.
33

In December 2013 the Government amended the regulations transposing the Free
Movement of Persons Directive into UK law, by requiring that the British citizen had
transferred the centre of their life to another Member State in order to benefit from Singh.
34

The Explanatory Memorandum to the SI explained:
7.11 (...) Whether or not a British citizen has transferred the centre of their life to
another member State will be assessed by reference to a number of criteria, including
the length of residence, the degree of integration and whether or not the British citizen
has moved their principal residence to that other member State.
The changes were made in order to ensure that there has been a genuine and effective use
of free movement rights in the other member State before such rights may apply by analogy
upon return to the UK. One of the intended effects was preventing abuse by those British
citizens who move temporarily to another member State in order to circumvent the
requirements of the usual immigration rules for their family members upon return to the UK.
The EU Rights Clinic at the University of Kent has posted some commentary on the
change.
35



29
Migration Watch briefing 4.22, Family permits for EU citizens in Britain, 9 May 2013
30
Labour.org.uk, Effective action on immigration not offensive gimmicks - Chris Bryant, 12 August 2013
31
ECJ, C-370/90
32
UKBA, Entry Clearance Guidance, EUN2,14 - EEA family permits, (undated; accessed on 6 September 2013)
33
BBC News [online], The Britons leaving the UK to get their relatives in, 25 June 2013
34
Immigration (European Economic Area) (Amendment) (No.2) Regulations 2013, SI 3032/2013
35
EU Rights Clinic Blog, UK Changes Rules on Surinder Singh route, 8 December 2013
9
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 income
requirement. The Home Offices policy guidance on the financial requirement summarises
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.
Income from self-employment, and income as a director of a specified limited
company in the UK, of the partner (and/or the applicant if they are in the UK
with permission to work). This is referred to as Category F or Category G,
depending on which financial year(s) is or are being relied upon. See section 9
of this guidance.
36

Various combinations of these sources are allowed in order to meet the minimum income
requirement, however certain combinations are not. For example, cash savings can be
combined with income from salaried and non-salaried employment in certain circumstances,
but they cannot be combined with income from self-employment.
There are specific criteria attached to each of these permitted income sources. For example,
as the descriptions for categories A and B indicate, the migrant applicants employment
income can only be taken into account once they are in the UK with permission to work -
their overseas employment income, or prospective earnings from a job offer in the UK, will
not be considered. Therefore, only the sponsor (i.e. the British/settled partner)s employment
income is considered if the applicant is not already living and working in the UK.
Furthermore,
If the sponsor is in the UK and relying on their employment income, they must be in
employment at the point of application (with a gross annual salary which meets the
financial requirement alone or combined with other permitted sources) and either:
o have been so continuously for the previous six months or
o if employed for less than six months, have also received over the previous 12
months the level of income required through gross salaried income and/or
other permitted sources.


36
Home Office, Immigration Directorate Instructions, Chapter 8 Appendix FM (Family members), Annex FM 1.7
(accessed on 16 July 2014)
10
If the sponsor has been living overseas and is returning to the UK with the applicant,
they must have a verifiable job offer or signed contract of employment to start work
within three months of their return (with an annual salary which is sufficient to meet
the financial requirement on its own or in conjunction with other permitted sources).
They must also either:
o be in employment overseas at the point of application (with a gross annual
salary which meets the financial requirement alone or in combination with
other permitted sources) and have been so continuously for at least the
previous six months; or
o have received the level of income required over the previous 12 months
through gross salaried income and/or other permitted sources.
The Immigration Rules and associated policy guidance also specify what pieces of evidence
must be submitted in order to demonstrate income from each of the permitted sources. For
example, an application relying on income from salaried employment must provide:
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 relied on to satisfy the minimum income requirement, they must
have been held by the applicant, their partner or both jointly and under their control, 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
11
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
37

Some changes have been made to the Immigration Rules and policy guidance, in response
to calls for greater flexibility.
38
For example, some flexibility was introduced about the length
of time that cash savings arising from the realisation of an asset must be held, and it has
been confirmed that academic stipends or maintenance grants can be counted as income. It
has also been confirmed that caseworkers have the discretion to contact applicants to
request further information or documentation before making a decision on the application.
2.4 Some common criticisms of the rules, and counter-arguments
39

Is the threshold set too high?
UKVI (previously 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 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 minimum wage for a 40 hour
week for workers over 21 is currently equivalent to 13,124 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 proportion
of people 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). Research published in June 2014 by
the Migrants Rights Network, which opposes the minimum income requirement, found 74
parliamentary constituencies where the 18,600 income requirement was higher than the
earnings of 50% or more of all residents in employment.
40

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.
41
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.


37
The amounts may differ for family members of Armed Forces sponsors.
38
HC 1039 of 2012-13; HC 628 of 2013-14
39
For relevant sources see, for example, APPG Migration, Report of the Inquiry into new Family Migration
Rules, 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, Letter
from Lord Taylor of Holbeach to Baroness Hamwee, 5 August 2013, DEP2013-1434
40
MRN, The family migration income threshold: Pricing UK workers out of a family life, June 2014
41
MAC, Review of the minimum income requirement for sponsorship under the family migration route,
November 2011, paras 4.43-4.44
12
Are the evidential requirements unduly restrictive?
Although the Government has made some minor adjustments to the Rules since July 2012,
critics have highlighted examples of inflexibility in the way in which the minimum income
threshold 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 the
eligibility 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 the funds 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.
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. 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 before they can sponsor the application. There have been
accounts of families enduring prolonged periods of separation due to not being able to satisfy
the minimum income requirement. It has also been argued that some families have needed
recourse to public funds, which would not have been necessary 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 alternative
model 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.
42
The
Government does not accept these conclusions.
43




42
Middlesex University, The fiscal implications of the minimum income requirement: what does the evidence tell
us? July 2013
43
HL Deb 24 July 2013 cWA248
13
3 Opposition to the minimum income requirement
Various civil society organisations are campaigning against the minimum income
requirement see, for example, the websites of the Joint Council for the Welfare of
Immigrants, Migrants Rights Network, BritCits and the Family Immigration Alliance.
44

3.1 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
Migration
45
published a report of their inquiry into the impact of the family migration rules
changes.
46
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.
47

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
between the different interests in this area.
48
The Government rejected this idea, stating that
it was satisfied that the family Immigration Rules are operating as intended but that it would
keep their impact under review.
49

The committee had found that the minimum income requirement had resulted in some British
citizens and permanent residents being separated from their non-EEA national
partner/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 that can be
taken into account appeared to have delayed or prevented some families from living together
in the UK, including cases involving 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.
50
In June 2013 they
published a briefing which summarised the UKs obligations in domestic and international law


44
See, 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; The family migration income threshold: Pricing UK workers out of a family life, June 2014
45
Migrants Rights Network provides the secretariat to the APPG on Migration.
46
APPG Migration, Report of the Inquiry into new Family Migration Rules, June 2013
47
APPG on Migration, Family inquiry (undated; accessed on 6 September 2013)
48
APPG Migration, Report of the Inquiry into new Family Migration Rules, June 2013, p.35
49
HL Deb 26 June 2013 ccWA147-8
50
APPG Migration, Report of the Inquiry into new Family Migration Rules, June 2013, p.35
14
and their concerns about how the new family migration rules have impacted on childrens
rights to family life.
51

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.
52
A similar debate took
place in the House of Lords on 4 July 2013.
53

During the debate in the Commons, Mark Harper, then Minister for Immigration, indicated a
willingness to consider whether there was 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 those
criteria.
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.
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.
54

In a subsequent Westminster Hall debate on the financial requirement in September 2013,
the Minister confirmed that the Home Office was considering how the Rules could take a
migrant spouses job offer into account, and that it remained willing to consider arguments for
further changes where unintended consequences of the Rules are brought to its attention.
55

Some minor changes to the evidential requirements came into effect on 1 October 2013,
such as allowing for electronic bank statements to be submitted and for cash savings to
include proceeds from a sale of property.
56
The changes also included allowing sponsors
returning to work in the UK to count future on-target earnings towards the financial
requirement.

4 Legal challenges
4.1 July 2013: High Court
Two British citizens and a refugee, who wish to sponsor their non-EEA national partners to
join them in the UK but cannot satisfy the financial requirement, have challenged the
maintenance requirements through judicial review.


51
Childrens 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 2013
52
HC Deb 19 June 2013 cc254-279WH
53
HL Deb 4 July 2013 cc1385-1406
54
HC Deb 19 June 2013 c277-8WH
55
HC Deb 9 September 2013 c808-810WH
56
HC 628 of 2013-14
15
Judgment was given in the High Court on 5 July 2013.
57
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.
Furthermore, 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 Immigration 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 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 income requirement 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.
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 party
support 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.


57
MM & Ors v Secretary of State for the Home Department [2013] EWHC 1900 (Admin)
16
Mr Justice Blake considered that there was 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 was up to the Home Secretary to consider whether to make changes in light of the
judgment.
The Home Office immediately suspended consideration of applications whilst it assessed the
implications of the judgment.
58
It subsequently appealed against the outcome.
59
A letter from
Lord Taylor of Holbeach, Home Office Minister, summarised the Governments position:
... 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.
60

Consideration of applications that fell for refusal solely because they did not satisfy the
financial requirement continued to be suspended pending the outcome of the Home Offices
appeal. However, processing continued as normal for applications that could satisfy the
financial requirement, or that fell for refusal for other reasons.
61

4.2 Court of Appeal: July 2014
The Court of Appeal hearing took place over 4-5 March 2014 and judgment was given on 11
July.
62
The Court of Appeal overturned the High Courts decision.


58
UKBA update, Minimum income threshold for family migrants, 5 July 2013
59
UKBA update, Minimum income threshold for family migrants, 26 July 2013
60
Home Office, Letter from Lord Taylor of Holbeach to Baroness Hamwee, 5 August 2013, DEP2013-1434
61
UKBA update, Minimum income threshold for family migrants, 26 July 2013
62
MM v Secretary of State for the Home Department [2014] EWCA Civ 985
17
Its findings included the following points:
149. So the key question is: to what extent should the court substitute its own view of
what, as a general policy, is the appropriate level of income for that rationally chosen
as a matter of policy by the executive, which is headed by ministers who are
democratically accountable? Blake J suggested, at [147], that there were "less
intrusive responses" that were available and he gave examples. What he meant by
this is that, in his view, these "less intrusive responses" constituted what was "no more
than necessary" to accomplish the policy aim and, in his view, constituted a fair
balance between the rights of the individual and the interests of the community. I
appreciate that proportionality has to be judged "objectively by the court". However, in
making this objective judgment appropriate weight has to be given to the judgment of
the Secretary of State, particularly where, as here, she has acted on the results of
independent research and wide consultations.
()
151. I am very conscious of the evidence submitted by the claimants to demonstrate
how the new MIR will have an impact on particular groups and, in particular, the
evidence that only 301 occupations out of 422 listed in the 2011 UK Earnings data had
average annual earnings over 18,600. But, given the work that was done on behalf of
the Secretary of State to analyse the effect of the immigration of non-EEA partners
and dependent children on the benefits system, the level of income needed to
minimise dependence on the state for families where non-EEA partners enter the UK
and what I regard as a rational conclusion on the link between better income and
greater chances of integration, my conclusion is that the Secretary of State's judgment
cannot be impugned. She has discharged the burden of demonstrating that the
interference was both the minimum necessary and strikes a fair balance between the
interests of the groups concerned and the community in general. Individuals will have
different views on what constitutes the minimum income requirements needed to
accomplish the stated policy aims. In my judgment it is not the court's job to impose its
own view unless, objectively judged, the levels chosen are to be characterised as
irrational, or inherently unjust or inherently unfair. In my view they cannot be.
63

In a news story published on GOV.UK on 11 July, James Brokenshire, Immigration and
Security Minister, welcomed the determination and defended the minimum income threshold:
We welcome those who wish to make a life in the UK with their family, work hard and
make a contribution, but family life must not be established in the UK at the taxpayers
expense and family migrants must be able to integrate.
The minimum income threshold to sponsor family migrants is delivering these
objectives and this judgment recognises the important public interest it serves.
64

4.3 What happens next?
The 18,600 minimum income requirement remains in force, and consideration of the cases
that had been put on hold pending the Court of Appeal determination thought to be around
4,000 will resume.
65



63
MM v Secretary of State for the Home Department [2014] EWCA Civ 985 (footnotes omitted)
64
Gov.uk, News story, Home Office wins judgment on minimum income threshold, 11 July 2014
65
Gov.uk, News story, Home Office wins judgment on minimum income threshold, 11 July 2014. As at 31
March 2014, 3,134 visa applications submitted overseas and 507 applications made in the UK were on hold:
Gov.uk, Transparency data, Number of settlement applications from non-EEA partners on hold pending the
results of a judicial review, (accessed on 11 July 2014)
18
An update posted on the website of No5 Chambers (some of whose barristers were
instructed in the appeals) discusses the possibility of a further appeal to the Supreme Court:
The Court of Appeal has held that the requirements are lawful. The court reached this
conclusion essentially on the basis that it was not for the court to analyse the basis of
the Secretary of States decision to introduce such requirements into the immigration
rules which are merely statements of administrative policy. The test adopted by the
court is the same as that which it adopted in Bibi [2013] EWCA Civ 322 (the case
concerning the English language requirement), namely that it is enough that the
Secretary of State should have a rational belief that the policy embodied in the
requirements will achieve the identified aim. This is an extremely restrained form of
judicial review and suggests a lack of willingness to interfere with governmental
decisions. This test seems to conflict with the approach adopted by the Supreme Court
in cases such as Baiai [2008] UKHL 53 and Quila [2011] UKSC 45 where the court
adopted a rigorous analysis in assessing the evidence and used a test requiring the
Secretary of State to show an objective justification.
The Supreme Court has already granted permission to appeal in Bibi on arguments
which include the argument that the test of a mere rational belief is wrong. It is likely
that the present case will also proceed to the Supreme Court. Whereas Mr Justice
Blakes decision had properly considered the detailed evidence provided by the
claimants lawyers, the Court of Appeal barely considered it.
66

The update goes on to consider the possible implications of the Court of Appeals
determination for applicants who cannot satisfy the financial requirement. In particular, it
notes that there remains scope to successfully argue individual cases under Article 8 of the
European Convention on Human Rights (right to private and family life):
Applicants may however still succeed under Article 8 of the European Convention of
Human Rights even if they cannot satisfy the minimum income requirements under the
rules. ()
The Court of Appeal did not treat the rules on minimum income requirements as
constituting a complete code for Article 8 purposes such that there was no need to
consider article 8 separately. Indeed, that was not the Secretary of States position.
The Court of Appeal also noted the Guidance which had initially been produced in a
draft form (only on the fourth day of the hearing before Mr Justice Blake) and the
Guidance which had then been promulgated in final form after that hearing. That final
Guidance directs caseworkers first to consider applications under the rules and, if the
applicant does not meet the requirement of the rules, to move onto a second stage.
Under that second stage caseworkers are required to consider whether, based on an
overall consideration of the facts of the case, there are exceptional circumstances
which mean refusal of the application would result in unjustifiably harsh consequences
for the individual or their family such that refusal would not be proportionate under
Article 8. If there are such exceptional circumstances, leave outside the rules should
be granted, if not, the application should be refused.





66
No5 Chambers, Court of Appeal rules on family migration and the minimum income requirement, 11 June
2014