Immigration Ruling will Bring Heartache to Many Families

scalesThe long-awaited Court of Appeal decision regarding the Home Office policy of applying a minimum income threshold to spousal visa applications has come in.  The Court has decided that the rule although discriminatory is not unlawful.  The Court essentially took into account that the intention of the Home Office was to reduce the possibility of applicants depending on the UK benefits system.  The Court found the objective of the Secretary of State to be legitimate and therefore the rule was found not to be unlawful.

The case initially came to the Court of Appeal because in 2013 the lower High Court held that the financial threshold rule was a disproportionate breach of families’ rights granted under article 8 of the European Convention of Human Rights.  The Secretary of State referred the case to the Court of Appeal.

The Court of Appeal decision will have a disastrous impact on families who are not able to reach this financial threshold.  The rule requires earnings of £18,600 to apply for a spousal visa.  If a couple has one child then this threshold increases to £22,400 with a further £2,400 for each additional child.  So a typical family of 2 children will need to be earning £24,800.  Someone on the minimum wage working full time will earn just over £12,000 a year – so we can see the difficulty many families will have right there.

The Home Office previously had up to an estimated £4,500 cases on hold whilst awaiting this Court of Appeal decision.

So what is the solution for families who will not meet this threshold? Well the answer is in the reasoning given by the Court.  It can be a good or bad thing that the UK is trying to make immigration applications a “tick box” exercise – so you either meet the requirements or you don’t.  This approach pervades all areas of immigration law so it is much easier to know whether you should make an application within the rules or ask the Home Office to exercise its discretion.  In cases where the minimum income threshold is not met, it will be for applicants to show that in their particular circumstances it is unreasonable to suggest they will be dependent on benefits.  It will not be an easy application but with the court granting legitimacy to the Home Office rule due to the reliance on benefits, that appears to be the only way of getting around it.

So we anticipate much heartache and backlog as the battle between the government and its people continues.