- BY Colin Yeo
Outcome of MM minimum income case in Court of Appeal
THANKS FOR READING
Older content is locked
A great deal of time and effort goes into producing the information on Free Movement, become a member of Free Movement to get unlimited access to all articles, and much, much more
TAKE FREE MOVEMENT FURTHER
By becoming a member of Free Movement, you not only support the hard-work that goes into maintaining the website, but get access to premium features;
- Single login for personal use
- FREE downloads of Free Movement ebooks
- Access to all Free Movement blog content
- Access to all our online training materials
- Access to our busy forums
- Downloadable CPD certificates
UPDATE: see report of Supreme Court judgment here.
The judgment is now out in the long awaited case of MM v Secretary of State for the Home Department [2014] EWCA Civ 985, the test case challenging the minimum income threshold for spouses wishing to enter the United Kingdom. The Court of Appeal has allowed the Secretary of State’s appeal. This is terrible, heartbreaking news for those families forced apart by the rule. An appeal to the Supreme Court will be attempted, but it will be many months until any outcome is known.
For previous coverage here on Free Movement, including the previous judgment, see here.
What follows is just an initial reaction on reading the judgment. I will update if anything further occurs to me.
The judgment is a long one and it is only at paragraph 132 that Lord Justice Aikens, giving the leading judgment, starts to answer the questions he has posed. In what many readers might be forgiven for thinking is a promising sign he holds that
the Secretary of State plainly is under a common law duty not to promulgate an [immigration rule] that is discriminatory, manifestly unjust, made in bad faith or involves “such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men”.
If such an immigration rule were to be made, the courts could strike it down. Further, an immigration rule must be formulated in such a way that if it does interfere with a relevant Convention right
it has to be capable of doing so in a manner which is not inherently disproportionate or inherently unfair. Otherwise it will not be “rational”, or it could be stigmatised as being “arbitrary” or objectionable”, or be characterised as being “arbitrary and unjust”
More ominously, he goes on to suggest that the test for striking down an immigration rule is whether it is “incapable of being proportionate and so is inherently unjustified”.
On the issue of the rights of British citizens, Aikens LJ disagrees with the judgment of Blake J in the High Court and holds that
There is nothing in the 1971 Act or the common law that grants a “constitutional right” of British citizens to live in the UK with non-EEA partners who do not have the right of abode in the UK and who are currently living outside the UK.
For a time it seemed that the British citizenship our politicians sometimes claim is precious might indeed have some value, but the Court of Appeal thinks not. Aikens LJ goes on to comment that the right to marry and found a family in the UK is not an absolute right. He accepts that the minimum income requirement is, like the minimum age requirement before it, a very significant interference with the right to private and family life and goes on to examine the question of whether it is justified in public law terms.
The policy aim behind the minimum income requirement was to safeguard the economic wellbeing of the country. What is the test for the court in assessing whether the measure in question (the minimum income requirement) is lawfully connected to the policy objective?
The Secretary of State does not have to have “irrefutable empirical evidence” that the individual features of the policy proposed will achieve the social aim intended. It is enough that she should have a rational belief that the policy will, overall, achieve the identified aim.
The argument has several strands to it, one of which is said to be social integration of new arrivals. During the hearing in March, the Home Office lawyers boldly suggested that the rich will integrate into society better than the poor. This is questionable on so many levels, particularly given the press coverage of London ghettos of abandoned properties owned by foreign nationals, questionable tax arrangements and the lack of an English language requirement for Investor visas. Aikens LJ is not interested in those issues, though:
The conclusion that a family with more income would be more likely to be capable of integrating is not susceptible of empirical proof, but a belief in the link between higher income and the likelihood of better integration is rational.
The work done by the Migration Advisory Committee is found to be further evidence that the policy is rationally connected to the overall aim. The members of the MAC itself have argued that their brief was unconnected to the setting of a minimum income threshold: they were merely asked to assess at what level a family would have no recourse to public funds at all. Their naivety is exposed in the judgment: their work is an essential building block in the Home Office legal case and a cornerstone of the Court of Appeal’s judgment.
The most striking conclusion comes at paragraph 147, where Aikens LJ to my mind rather tenuously distinguishes Quila and Baia, previous attempts to prevent entry by foreign national spouses:
Here, the non-EEA partner can enter the UK, provided the UK partner’s level of income, judged by the policy of the new MIR to be appropriate, is reached. Admittedly there is a total ban on the entry of non-EEA partners where the UK partner cannot reach the required minimum and I appreciate that this ban could be life-long. But there has always been a maintenance requirement at a certain level and if that level was not reached by the UK partner, then there was a total ban on the entry of the non-EEA partner unless, in an individual case, it would be disproportionate under Article 8(2) to refuse entry in that instance. Moreover, maintenance requirements are not unique to the UK and it does not set the highest minimum annual income; Norway does.
The problem with this approach in legal terms is that there has also always been a minimum marriage age. And several other European countries specify 21 or even older as a minimum age for sponsorship. A person can get married at 16 in the UK before Quila but was not able to sponsor a foreign spouse until 18. The Supreme Court found in Quila that the increase from 18 to 21 was unlawful. The analogy with the minimum income seems to me very strong and not so easily dismissed. Income is for some people as immutable as age: many people on the national minimum wage working all the hours there are simply cannot achieve the required income level and never will.
The coup de grâce comes at paragraph 150, where Aikens LJ concludes that after all the work the Secretary of State and her dedicated officials put into setting the income threshold where they did, the judgment of the Secretary of State “cannot be impugned”.
There will be those who disagree, I imagine rather vehemently. The conclusion that as long as one has done one’s homework it does not matter that it was unreadable nonsense is certainly quite a striking one.
UPDATE
The Home Office has issued a response to the Court of Appeal’s judgment:
Immigration and Security Minister James Brokenshire said:
I am delighted that the Court of Appeal has comprehensively upheld the lawfulness of this important policy.
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 taxpayer’s 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.
Today’s judgment overturns an earlier High Court judgment from July 2013, which was supportive of the approach but found that the impact of the minimum income threshold on family life could be disproportionate.
Applications on hold will now receive a decision
The judgment will mean that, from the 28 July, the 4,000 individuals whose applications are currently on hold, pending this judgment, will now receive a decision. These are cases which met all the requirements apart from the minimum income threshold and now stand to be refused.
Considering the impact of the judgment, the update is accompanied by a rather tastelessly chosen image.
UPDATE 2
No 5 Chambers have put out a news item on the judgment that is worth reading. Three of No 5’s barristers were instructed in the case.
UPDATE 3
The Home Office has announced that refusals of the suspended applications will start from 28 July 2014. At least this will allow applicants to correct errors made by the Home Office or argue their cases on human rights grounds.
UPDATE 4
Interesting House of Commons Library briefing on the history of and controversy around the spouse minimum income requirement.
SHARE
89 responses
Omg I have nevr expected this…..can you please tell me how long it can be take for full decision come down?
Gutted! does any one know what will happen to the applications already on hold?
Applications that were ‘on hold’ will most likely now be refused, potentially allowing for appeals under Article 8…
Zaheer the full decision has been passed.
Who r involved behind 18,600 rule, all r simply heart less, nonsense who have no idea about the relation between parents and child, because they r grown up in a separated child room without taking care of parents their grown up sense is blocked, unable to think other way.
Are they still maintaining the £18.600 threshold minimum income requirement?
Yes, unfortunately.
Reluctant as I am to disagree with m’learned friend, I’m not sure that “always” is correct in paragraph 147 as quoted above.
“But there has always been a maintenance requirement at a certain level”
Prior to Appendix FM the maintenance requirement was very subjective and based on consideration by the caseworker/ECO and the individual application/applicant. It wasn’t set “at a certain level” as it depended on the circumstances of the entire case and, often, the caseworker’s mood.
It is common ground between the parties that the old ‘adequate’ test for maintenance was basically equivalent to income support, as held in several tribunal cases. That does tie it to a particular level, in effect. Blake J goes into this in some depth.
Thanks Colin – I must admit its all moved on from my days as a caseworker, when there weren’t as many tribunal cases setting out how cases were to be dealt with! I seem to recall having to make a judgment based on the person’s income and outgoings to see if there was adequate maintenance. It was a happier time!
The case will be taken to Supreme Court and can take months (up to a year) for the decision which may not turn at that stage too.
I’m so gutted, my whole life depended on this decision. I don’t know what to do, I am already working 2 jobs so will need to go and find another one and work 24 hours to meet the income threshold.
Good Luck :)
:( Totally devastated, my whole marriage life depended on this, :'(
Is it still 18, 600 maintenance. .??
Yes, sadly, unless the Supreme Court overturns this finding if there is an appeal
Gutted is an understatement :( I work for national minimum wage and would have to work 60-70hr wks to even get anywhere near the threshold :( whats the point of even having a husband/wife if you cant even spend quality time together?! My husband is a turkish national and we was refused solely on financial grounds. Our application thus being put on hold until the powers that be can see what harm and unnecessary stress they are causing!!! I agree that people that come to live in this country should not cause anymore burden onto our already struggling financial ecomony but many people do not see UK as a means to an end they see a better way of living and want to make a living not sponge of the tax-payer!!! As i said before my husband is a turkish national and is entitled to claim certain benefits, which we have not done. Our solicitor told us that the ruling to put us on hold because of my earnings was unjust and should not have been the case. When i rang the home office the woman i spoke to said you should have been claiming these benefits before you made the application!!! Hmmmmmm begs to wonder then why i have to be earning 18,600…… so do we pay more money out and take it to court or wait another long painful 12mths before we actually can start living our lives together?!
What benefits can a Turkish national claim? I’m intrigued as Turkey isn’t in the EEA so I wouldn’t imagine he can claim JSA or DLA etc
They are entitled to certain benefits but im not sure which. I no he cant get jsa etc but have not been advised what he can actually claim. Uk and turkey have and agreement in place for turkish nationals.
I expect those currently in limbo will be refused now as there no reason from the govt’s perspective to hold onto them. So there will be a right of appeal to the Tribunal and appellants will need to show that their cases are somehow different, i.e. more exceptional than those refused by the Court of Appeal. I have not read the decision yet, but I hope I am not wrong in presuming that there may be some circumstances in which a refusal of a visa on financial grounds will breach Article 8??? For in-country applicants there is the Exception in Appendix FM. Other than that, there is for the time being at least – Surinder Singh!
What do you think HO will put refusal on hold application .?
My wifes settelment application has been 9 months the application is on hold because of the threshold i am very disappointed because i pass the threshold with evidence provided the eco accepts my rental income of £14,400 but does not take my salary in consideration which i provided with p60 and 3 years end of year tax returns i pass with £24,150 but unfortunately the visa department are still saying i do not pass the threshold they are not giving my wife a refusal so i can take them to court what can i do ?thankyou.
You’re in a similar situation as my husband and I. He is both employed normally and is self-employed. He made over the income threshold for two years already (they have not seen for this most current tax year, but he also met the requirement then too), however they’ve disregarded PART of his self-employed earnings on account that he didn’t provide invoices showing where the income came from – documentation that isn’t even mentioned in Appendix FM or FM-SE.
I can’t speak to what you can do legally, but we’ve been on hold for a year now for the same reasons. They’re supposed to be sending out the refusals by the 28th of July.
Having read it, the Judgment is well reasoned, it grappled with all the thorny issues raised and is clearly unassailable. Any challenge is bound to fail.
That’s what I thought about Blake J’s (and HHJ Leonard in the OpCotton case as well), but that doesn’t stop the Court of Appeal!
@ huseyin…I think u should yake it to court.if u cn shaw strong evidence
First evidence is the eco accepts my rental income from an email that they replied but the eco is not mentioning anything about my p60 there is no other proof more stronger then this also i have purchased a new property so in total 3 properties 2 rented one residential i have no idea how the visa department is calculating the threshold.
Note no appplication had been made on behalf of the appellants so the COA did not in fact judge whether there indivdual circumstances were exceptional. So the Home Office shouldn’t be arguing that circumstances need to be “more exceptional” than these appellants…
Can anybody please help me and suggest me what should I do as my application has been put on hold for no reason. I applied on 9th of july 2012. My husband is a British National and his income is more than £ 18,600. We have full filled all other requirements as well but still facing this misery :(
Now wait for the decision by 28 july HO will take decisions on put on hold applications
Ditto, Asma. You’re not alone in being wrongfully refused based on their weird interpretation of income. Have you sent updated financial documentation for the subsequent years after you applied to show that you continue to meet the requirement? That’s what our solicitor has advised us to do.
next year is an election year, I would really like to know where Labour stands on this case?
Can I just ask about applicants who already have appealed against the refusal of there applications and there appeal were allowed on human right basis, what will happen to there cases?
Asma, most likely the Home Office doesn’t accept all of your husband’s income as counting, so it thinks you are below threshold. You should find out when your case is decided- and appeal if necessary.
Mars, appeals already allowed will be granted status, there is no need to worry about them.
Hi .my wife on full benefits however homeoffice put my application on hold do u think I will get my viss in human right as I hv my 1 year baby
Thanks
Thanks Philip Thomas.
Hi Colin,
My case was put on hold as I didn’t show enough evidence that I had earned the £18,600. I submitted further documents to show that I did. My question is now that the case is done with, will they look at these documents and then take a decision? Thanks
If my husband doesn’t have enough income for the minimum requirements let say he earns only 13thousand a year will a bank savings be accepted and how much as we are planning to just resubmit the application. Thanks in advance.
If you want to supplement your income with savings, your husband will need £16k in savings PLUS 2.5 times whatever amount you’re short (in the scenario that you’re suggesting: £18,600 – 13,000 = 5,600 * 2.5 = 14,000 needed + 16,000 = £30,000 in savings total).
Such disappointing news, I’m very heartbroken
Would the home office grant my spouse visa if my partner worked two jobs in order to meet the financial requirement?
In theory, yes, but there are people who have experiences that run contrary to that so it’s a bit of a crap-shoot.
Total disappointment! I had a glimmer of hope, but in all honesty I am certainly not surprised to learn of this. Yet again another blow to us genuine people out there trying to do the right thing by their family and getting beat down at every single stage. So much for following the rules and being honest. To be honest I am feeling very bitter and angry. What am I to do? It’s just so unbelievable the way these people have total control over our lives. I’m sure they get a real buzz out of it.
Hey prinderella! My application is not been refused yet. They have asked me for more documents as evidence of income in December 2013 and I have provided them all but they didn’t satisfy with that and then put my case on hold. Should I send them more evidences of income related to this year now ? Will they consider them in their enquiry ?
Philip Thomas, what do you suggest me about this please ?
Our Solicitor suggested that we get a Subject Access Request (SAR) for the documentation that the Home Office had for our application. It took about a month for us to hear back from them, but that was how we learned the reasons why they disallowed part of our income (the apparently wanted invoices for my husband’s self-employed income, and because of that, they disallowed part of that income – despite the fact that invoices aren’t even required or mentioned in Appendix FM).
Knowing that now, we’re going to be providing updated financials with invoices as well – something that we never would have found out without the SAR; so I would recommend that for you as well if you haven’t done so already.
Beyond that, our Solicitor also said that there was every probability that they would ask for the newest year’s financials anyway so it is just better overall to submit them so that they have one less reason to stall/reject.
Colin and Philip, please can you address this issue.
A European citizen living in the UK is allowed to have their Non-European spouse join them to reside in the UK. I have heard of British citizens moving to Europe and surrendering their British passports in order to return to the UK as an European and thus be allowed to have their non-European spouse to join them without having to meet the financial threshold. Is the European partner also entitled to claim public funding? Obviously there are fundamental issues with these rules as they regard a European citizens right to a family life higher than that of a British citizen.
I’m British, married to a Sri Lankan for 7 years, we have 3 children who are British. I work and earn less than the threshold, my husband has also been refused a family visit visa, as they claim to have reasonable doubt that he would try to stay in the UK illegally. Our daughter is just shy of 4 and due to start full time education in September, she is heartbroken. Our twins are 4 months and have never met their father. In order for me to earn above the threshold I would need to work a 45 hour week, which in turn would cost me £25,000. in childcare costs.
I’m aware of the current political debate of whether or not the UK should stay in the EU, which begs me to consider, even if I surrender my passport and become an European citizen, it may come at a time where we exit the EU as a nation and we are back to square one.
The home office are penalising British citizens in order to be seen as politically correct with other EU nations. This disregard for the right to a family life is absolutely disgusting.
I appreciate your professional advise in anticipation.
Kind regards,
Katherine Susanthan
Hi Katherine, I’m sorry to hear of the very difficult circumstances you find yourself. I’m wondering if you have any more details about this loophole as I’m not too sure what you mean? I know that there isn’t actually anything that is a European Passport per se, because the EU isn’t a state so it can’t issue passports, only the individual member states of the union can do that. Technically we are all already EU citizens and the passports of the member states reflect that. So when you say go to Europe and surrender your passport, who do you surrender it to, and what happens next?
Best wishes, Ervin.
Katherine, what you mention is known as the ‘Surinder Singh route’, named after the European Court of Justice case law, Surinder Singh (Case C-370/90). Surinder Singh is implemented in UK law as Regulation 9 of the Immigration (EEA) Regulations 2006 (amended in 2013*). You do not have to “surrender” your British passport or any such thing, and yes you can claim social assistance in the EU but only if you work or are self-employed there. The basic principle is that you move with your non-EU family member to an EU country and reside there for a recommended minimum of 6 months and work there for a recommended minimum of at the very least of 12 hours per week for 10 weeks for your work to be considered “genuine and effective”. After that, you should be able to claim a right of return to the UK with your non-EU family member under Regulation 9.
*However, the UK amended Regulation 9 of the EEA Regulations in December 2013 to add an extra stipulation that the British sponsor must have moved his “centre of life” to his host EU country to be able to earn a right of return to the UK with his non-EU family member. This means that you have to prove to the satisfaction of UKVI that your intentions in your host EU country were long-term as opposed to temporary and prove that you “integrated” in your host country. The reason for the amendment was to prevent “abuse” of Surinder Singh case law to circumvent UK domestic immigration rules. In the past, a short 3-month stint in the EU would have been sufficient to satisfy Regulation 9, but now that will no longer cut it. Good “centre of life” proofs could be for example long-term contracts for bills and insurance, library and gym memberships, proof of school enrolment for your children, etc. It’s all absolute nonsense but you have to provide such proofs. “Centre of life” has actually been negated by a recent ECJ case law, O & B (Case C-456/12) but it hasn’t been implemented in UK law yet. See Colin’s post on this specific matter: http://www.freemovement.org.uk/surinder-singh-immigration-route.
The right of an EU citizen and his direct family members to reside and work in a host EU country are covered by Directive 2004/38/EC, and the right of an EU citizen to return to his EU country of origin with his family members after working in the EU is covered by EU case laws, Surinder Singh, Eind (Case C-291/05), and O & B.
As Lisa B says, that is known as the Surinder Singh route by many, but it does not involve surrendering your British passport, nor would I describe it as a “loophole”: it is all about making use of EU free movement rights. I’ve written a blog post about it here and just finished a more comprehensive ebook about it here. I hope the information is helpful.
Katherine, you need (as indeed you recognise) professional immigration advice and a blog comments page is not an appropriate forum for that. Apart from anything else, the giving of immigration advice to individuals about specific cases is strictly regulated (even more than most other forms of legal advice). Sorry I can’t be more helpful.
Philip I have asked you about sending the documents would you please tell me something about that ? Thanks
I have been reading a great deal of hysteria about this judgment and in infamous maintenance requirement under the immigration rules. I think its time to take stock and look at it objectively.
The old rule was, under KA and Others (Adequacy of maintenance) Pakistan [2006] UKAIT 00065 set by the Tribunal as being:
‘The requirement of adequacy is objective. The level of income and other benefits that would be available if the family were drawing income support remains the yardstick.’
Please note the ‘and other benefits’. This included housing benefit and council tax benefit.
The current income support level for a married couple is £112 approx per week or £6,344 per year
Housing benefit is capped for a couple at £250 per week or £13,000 per year.
Council tax benefit will amount to around another £1,000 per year.
Therefore the starting point under KA and Others (Adequacy of maintenance) Pakistan [2006] UKAIT 00065 would have been an income of £20,344 for a British citizen sponsoring a partner.
This was originally set by the cases of Islam (13183), Momotaz Begum (18699), Uvovo (00 TH 01450).
Objectively therefore the maintenance requirement of £18,600 is somewhat more generous than the previous rules permitted.
Even under the previous Immigration Rules there were people prevented from having their partner join them because of their failure to meet the maintenance requirement. The previous regime did allow the offer of employment to be taken into account and third party support and the savings requirement in the absence of adequate income was lower.
I think all in all the problem with the maintenance requirement in the new rules is that it sets a minimum income requirement which must be met and as a consequence some people will not meet that requirement. I do think the government should rethink the requirements and allow for credible offers of employment to be taken into account coupled with perhaps a shorter grant of leave and a mandatory check on income at the end of the trial period.
No, no and no. The old rules permitted a far more flexible approach and, crucially, third party provision of accommodation as well as maintenance, as well as prospective earnings. The threshold was therefore nowhere near as high as you suggest. This was all gone over exhaustively in Blake’s judgment.
Julian, I have never seen any attempt to fold housing benefit and council benefit into the old test before, not least because there was a quite separate “adequate accommodation” requirement. Since the old test still applies to various categories (spouses in receipt of certain benefits, single parents) it is important that it actually work. The calculation you propose would not work- levels of housing and council tax benefit are not consistent nationwide (as you note, housing benefit is capped, meaning it can be lower).
One of the problems with the old immigration rules was the difficulty faced by ECO in judging the adequacy of maintenance. One of the objectives of setting a hard minimum income threshold was to provide clarity in this aspect of the decision making.
On the subject of folding housing benefit and council tax benefit into the calculations under the old rules, this was implicit in the judgments in Uvovo and KA and Others. It was largely ignored in the appeals process and the income support level was generally used.
I do find it of some concern that the Secretary of State went for the MAC recommended level of £18,600 with its estimate that 45% of applicants would not satisfy the test. It makes one wonder whether it was the 45% figure that as upper most in the minds of the policy drafters or the fact that this was the level at which it was estimated that there would be no recourse to public funds. It might have been better to have set the figure somewhat lower. I am not convinced that the lower figure of £13,124 quoted by Blake in MM would necessarily be satisfactory either.
The flexibility of the old system led to a constant whittling down of the maintenance requirement until it became almost irrelevant. That said, the new system is unachievable for many couples and will remain unachievable for a significant number indefinitely.
However much the government may justify the figure as being aimed at eliminating dependency on public funds and the promotion of integration, it would appear to be that the real motivation was a reduction in migration rather than a reduction in the economic impact.
The MAC figure of £18,600 was made up of income support for a married couple, average housing benefit entitlement at a rent of £100 per week and council tax benefit. The report found that the figure of £18,600 was the gross income level at which housing benefit and tax credits were withdrawn. Wishing the figure lower does not negate their calculations.
The problem with the rules is much more than the income threshold being c140% higher than minimum wage.
The rules now exclude 3rd party support. They don’t make any allowance for the partner’s income. There’s an absolutely bizarre savings multiplier to make up for a shortfall in income, a route that the self-employed are not even allowed to use. Pensioners are essentially required to sell their mortgage-free property to show they have the cash savings.
Brits overseas wanting to return home are faced with the prospect of months, even years apart from their partner and sometimes children as they are faced with the double whammy of weaker currency in their country of residence compared with the sterling and finding a job from overseas; the Brits overseas who do earn over £18,600 are also severely impacted.
Evidential requirements are onerous and those working in multiple jobs to meet the threshold are shafted because of the complexities. Even those who do meet the threshold are being refused on technicalities or worse, ECO error. People’s mental and physical health is being affected – they’re not able to integrate in the race to earn more money – completely at odds with what the rules should be encouraging.
Family visit visas are being refused. Parents are missing out on sharing the birth of their child and all the first moments; birthdays are celebrated on Skype!
This level of interference should not be acceptable by anyone, including those not directly affected, else are we prepared for what the govt/courts may do next? Brings to mind http://allpoetry.com/First-They-Came-For-The-Communists
I thought I had calmed down, clearly not.
The MAC report which HO cites from as if it were gospel said of the £18600 threshold, over £5000 is for accommodation allowance. Why then not reduce the threshold for those who are mortgage-free or have free accommodation? Blatant misuse of their own research.
Love your homework line Colin – it’s precisely that isn’t it. But that the CoA took four months to say what this is a poor reflection of the state of our judicial system.
Generally the Home Office doesn’t accept documents (in spouse visa applications) submitted after the application, unless the Home Office asks for said documents. However, in any appeal the court would be looking at the date of the Home Office decision, so evidence relating to the period before that decision, even after the application was made, would still be relevant (arguably under the rules and even more so in any human rights argument). Make sure copies are retained of any evidence submitted!
Integration; what is that exactly?
Hi Colin and fellow divided spouses,
This is my first blog but I have been following the site daily up to the outcome of the MIR case. I’d like to say thanks to you and your colleagues for providing a space for people like myself who are effected by our government’s tactical stance on non-EU citizens.
I wanted to get your feedback on a particular point that seemed to be at the forefront of Justice Aikens thinking; integration. He along with the Home Office believes that integration is significantly dependent upon one’s finances, and therefore it is a strong justification for the setting of the MIR at £18,600. It almost reads as if Justice Aikens is alluding to a legal requirement to integrate, and one must therefore demonstrate they meet the MIR to do this. But wasn’t the research Teresa May commissioned to establish the MIR based on the minimum level required to not access public funds, rather than a minimum level required to integrate?
What is the legal definition of integration? Sociologists recognise that we live in a largely segregated society so how do you go about legally, or indeed practically, clarifying what indicators a person must demonstrate in order to be viewed as integrated? Or for that matter, how do you go about penalising those who do not meet such indicators? Also, how is it that this imperative to integrate is not required for all foreign nationals, only foreign nationals outside the EU applying for a spouse visa? Why does one foreign group require ‘integration’ where another does not? Does this not constitute discrimination?
And then there is another glaring inconsistency; not all non-EU citizens originate from contrasting cultural traditions. Indeed, those from Australia, America, and Canada etc have juxtaposed socio-cultural structures and beliefs. Do these people need £18,600 to ‘integrate’? There are also many other people that come from different cultures but who are also ‘fluent’ in our ways and language. My fiancé for example is Japanese and has lived, studied and worked as a lecturer at universities in Australia for 10 years as well as visited on a tourist visa here and stayed as long as is permitted. She earns in excess of the MIR in her Australian post, but I do not here, so she cannot get a spouse visa.
Therefore, I believe that Justice Aikens attempts to create a link between an anomalous, undefined pseudo legal idea of integration to a MIR level that did not include ‘integration’ in its research mandate.
I think that it is common knowledge that we as separated spouses have all fallen foul to political point scoring over the immigration debate. This being the case, Teresa May’s policy is tantamount to an abuse of power that discriminates against a minority group of UK citizens (us) and our loved ones ‘segregated’ from us abroad, with heart-breaking results. It has no doubt also damaged our reputation in the eyes of the international community, but as Justice Aikens states, her judgement “cannot be impugned.” A whistle blower from within the Home Office would be very useful right now.
Where next? I believe the parties involved are heading to the Supreme Court, I think I also read somewhere that they are also needing to seek a legal aid extension? In the meantime it would be a good move right now to seek an election pledge from Labours’ leadership, to preferably dismantle Teresa May’s spouse visa in form and structure, or at the very least guarantee a review with the aim to make it fairer and attainable to all classes. What we really need to lobby labour for is; 1> a significant reduction in MIR which makes it attainable to those on minimum wage as set by the state 2> a significant reduction in the costs associated with making an application to more accurately represent the time spent on making a judgement 3> minimise the absoluteness of the current ‘tick box’ system and bring back the case-by-case assessment based on circumstances 4> allow ALL savings to be considered 5> acknowledge third party sources of income and support if assurances can be obtained 6> acknowledge prospective earnings of the spouse 7> acknowledge regional variations in MIR 8> remove discrimination by either legally defining integration and making us all comply (which is completely fanciful), or more sensibly apply the ‘melting pot Britain’ hypothesis that politicians like to espouse at home, to non-EU spouse applicants abroad. Not an exhaustive list, and most represent a return to the previous system, additional points are most welcome. Are there any groups that have formed to lobby the labour leadership into pledging their support?
Another thing I’d like to learn about are the expanded statistics on the numbers affected by the MIR. I see that 50% of the population are currently prohibited by the former Minister for Women and Equalities from having a family life if your loved one is a non-EU citizen. Does this figure represent those who require £18,600 only, if so, how about the percentages for those who have one dependent child, two children etc? A statistical breakdown would be good to show the incremental effects of the current policy, which may help lobbying labour.
Sorry for such a long post. I look forward to reading any feedback.
Sincerely, Ervin Enver.
My appeal with regards to the financial requirement was heard back in January and appeal was allowed under article 8 but still no visa issued!! No one could provide update but finally local MP found out HO challenged the allowed appeal but courts never received paperwork! HO never followed up appeal so no further to being reunited with my husband! I am at a complete loss at what to do next!!
If your MP is already in contact with HO then you could ask him to point out to them that they need to either issue the visa or send the paperwork to the courts again (and the courts can then make a decision on whether their appeal is out of time). If they refuse to listen to him then you’re probably looking at Judicial Review.
I asked MP to do this but not had a response as yet! Courts gave me tel number to call HO and I spoke to someone to request they send paperwork again.
Still not done when I checked on Friday and it was two weeks ago I spoke to them! Who can set up a judicial review?
You need a solicitor- or a barrister with direct access.
Thanks Philip for your comments – got a solicitor already who represented us for the hearing! Maybe I need to find another!
i have applied under 18600 rule but they put my application on hold . Is there any chance to get visa?
After this decision by the courts to uphold the appeal from the HO, i am now faced with being wripped apart from my wife whom is a peruvian national. when we were told that the decision will be put on hold as we didnt meet the threshold, we were also told that should circumstances change then we should let them know and she would be given her visa. I managed to find my wife employment here in england and with that combined annual salary, we would have gone past £21,500 per year. I advised the powers that be of this and showed them an offer of work on headed company paper that was formulated by the owner of the company for which i work. They even refused this too because in their words ‘it is a different application’ that we would have to go through, being a ‘working visa’. I told them that this was highly unfair because we had now satisfied everything that the HO had asked for but at the point where it was settled, they decided to change the goal posts on our application. Every one of us in this position can earn the £18,600 per year threshold and bring our family members into the country, where our loved ones wouldn’t have to lift a finger to work and make no financial contribution to our economy whatsoever…..but yet a combined income of way above that figure is not good enough. I am now faced with the very real prospect of losing my wife or selling everything that i have and moving to peru where the economy is far far worse than ours here. you look at the different economies in different parts of the UK. i live in east lancashire where the average annual salary is about £10,000 less than that in manchester which is not even an hour away and something like £20,000 less than the south and london inparticular, so i am flabbergasted as to how the HO can think that this is a level playing field, because it clearly is not. All of us that face being turned down as a final decision i am truely sorry that we are all gonna have to go through this. some people say that miracles do happen…i really need one and i sincerely hope that you all get one too.
This is total MAdness none EU spouse already have there passport stamp that they cannot get public funds. So I don’t know how the HO is giving this as a reason why income is at £18600……the way how I see it is that british citizen don’t have any rights in there own country ………..maybe if you where from another EU member of state things would be different ……..don’t give up guys if you truly love someone you should not be kept apart because of money ….
i am very upset on that who is gona help on that just coz of money i cant beilive that there could b another way to solve this issue like they could put a condition that if spouse comes and taje benifit from govt he or she will b kiccked out that was bearable
Totality agree with you.Circumstances change for better or for worse in sickness and health your finances change so does the cost of things from day to day.The only requirement to get a spouse visa .Should be you have no criminal record and vetted that should be enough, money should not come into it,After all when you married you both make a vow for better or for worse Anyone now can have a job one day and not the next.Whats money have to do with the way you live and do the really care after you are here.If you love each other you take care of each the best you can.
hi philip and collin
after the home office wins the case and unfortunatly we have to b apart from our loved . i just wanted to know what next are they going to refuse the cases or they gona still hold is there any hope and what should we do in this sittuation this is very heart breaking news ..
The Court of Appeal’s judgement is essentially an open invitation for every spouse visa case refused on this basis to be appealed on human rights grounds. Only that way will we find out what the mysterious “exceptional circumstances” referred to by the court are. And maybe if it gets back to the COA with an actual case as opposed to pure theory the Court will be minded to be of some help!
(it is possible the HO may allow a small fraction of the 4,000 cases, perhaps where, on rechecking their sums they realise the spouse is actually earning the target amount, but I wouldn’t hold your breath on it).
Will the HO recheck the hold cases or they just refuse all of them without any rechecking ? Does anybody know about this?
is your salery is due to 18600?
My husband salary is more than £ 18,600 but i don’t know why they didn’t satisfy with that and put my case on hold.
same here Allah kher hi karay
Ameen!
Philip is of course right, and my last post on this topic was silly. Mea culpa for not having read the decision in MM before pontificating upon it. The Court of Appeal did not decide that the visa applications of the Appellants were lawfully refused, as the Appellants had not yet made applications. The challenge in MM was to the legality of the Tory government setting an income threshold of £18600. If I were a gambling man, I would say that some of those appellants’ applications, when made, may well succeed.
Where there are real difficulties for the couple living together in another country, or where children are having to live without both their parents, then those applications may well succeed on Article 8 grounds. Some of those responding to Colin’s post have had applications refused due to a shortfall in the documentation. Those too may succeed if the income is adequately evidenced, even where not completely compliant with Appendix FM-SE. Possibly too, where the overseas spouse has very good evidence of a job offer in the UK.
I suspect in time that the govt may amend the rules to provide for the in-country exception to apply to visa applicants. I cannot really understand why they did not do that in the first place.
So, I want to have my say, I’m earning just under £15,000. I work a 10 hour day with no breaks, no food and still I can’t bring my fiancee from the US to the UK…. I live with my parents, and I don’t plan on moving out. I enjoy being with them. They love my fiancee to bits. They welcome her to live with us when I can get her over. The problem is the government think I am going to go onto benefits? I think not. I manage perfectly fine without them.. I pay my taxes…I work hard, she will work hard.. She is half way to getting her degree. Yet The government don’t think we shouldn’t be together? Why? We manage. Surely the government can monitor benefit claims? Surely they can block benefits on people who want to bring spouses over? But what is the problem most of us pay taxes? Don’t any of you watch benefit street or anything? They are the ones you need to be watching about benefits… They haven’t worked a single day in their life on them programmes. I want to be with the person I love and I don’t think the government should have a right to stop that. If there is proof you have been together, seen each other, talk to each other daily? been together for more than 2 -3 years? What is the problem? Is it ok to have people depressed? Upset? Heart broken and hurt just because they can’t be with the person they love? Daily I struggle because I am not with my fiancee, I am upset, i feel sick…. I think a few others can say the same? I think if this government knew what it felt like to be away from a loved one… they would think twice…
Heartbreaking news, I can’t believe how in 2014 the UK the birthplace of the courts, democracy and human rights make these laws and stop couples to be with each other and to live the life together! This is so sad! Organization of the Human Rights needs to do something for these 8.000 people which can’t be with each other just because of this law!
can u imagine how killing this silly decision is for real lovers i mean for god sake u have gave years of ur life to eachother got married shared feelings then how easily they refusing just coz of money man where are the human rights where ?
The leading Judgement in MM v SSHD (2014) on Minimum Income Requirement. The comparison between the Minimum Age Requirement for marriage and the Minimum Income Requirement is incongruent. Everyone is capable of reaching the legal age of majority required for marriage, but not everyone is capable of attaining the 18,000 pounds Min Income Requirement. Therefore, the Min. Income Req. is inherently discriminatory, whilst the Min. Age Req. is not.
Also, although the reason for the Judge’s Decision, that of protecting the Public Interest and the economic well-being of UK citizens is compelling, deviating from the question of whether the Min. Income Req. policy is ‘manifestly and INHERENTLY UNJUST’ to whether it is ‘incapable of being proportionate and so is INHERENTLY UNJUSTIFIED’, is a deviation from the established legal principle. The learned Judge might have potentially misdirected himself and created new shifting sands, adding to an ever increasingly complex patchwork kilt of immigration rules. It remains a manifestly unjust and disproportionate interference with the applicant’s Right to Family life.
Thirdly, family re-union immigration is not mass immigration for which the Immigration Act 1971 was enacted to starve. Therefore, it is very unlikely to have a significant impact on the economic well-being of British citizens and have a negative impact on societal integration.
I hope Immigration lawyers like Colin Yeo will help us challenge this Court Of Appeal Judgement at the Supreme Court, even the ECtHR.
Yours truly
JB LLB(hon) Law. Self-employed Immigration Lawyer
Hello, does anyone know if they refused all the applications on hold? Thanks