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Hope for Families Divided by the Income Threshold


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Last week Monday, I represented a married couple in the husband’s immigration appeal in the First-Tier Tribunal instructed by Yomi Oni-Williams of Owens Solicitors.  I have the couple’s consent to write this post although there is no need for me to publish any identifying information.

United by Love - Divided by Theresa May, JCWI Campaign
United by Love – Divided by Theresa May, JCWI Campaign

This was an in-country appeal with the husband having resided in the UK with, most recently, leave to remain as a Post-Study Worker.  His wife is a British citizen, who had never resided anywhere else.  They were both working and did not have any children.  The only ground for refusal raised by the SSHD was that their income as a couple was less than £1,000 short of the £18,600pa threshold.  Because this was an in-country application, the applicant’s/husband’s income did qualify towards the £18,600.  Otherwise they would have been substantially further away from it.

At court, the Presenting Officer made an adjournment application on the basis that the SSHD is appealing or considering whether to appeal the High Court’s MM, R (On the Application Of) v SSHD [2013] EWHC 1900 (Admin) judgment.  This appears to be the official line which POs are instructed to take.  Thankfully the adjournment application was refused on the basis that an appeal to the Court of Appeal, if the SSHD is granted permission, would take many many months.  Besides why should the law not be applied and interpreted as per MM in the meantime just because one of the parties to that appeal and forthcoming appeals in the lower courts disagrees with that judgment?

Following the adjournment application being considered and refused, the hearing proceeded and was allowed on the spot.  My clients and I were indeed very grateful to the guidance set in MM (summarised here on Free Movement) and this case presented a straight forward example of how to apply Mr Justice Blake’s guidance.  As mentioned above, the couple were minimally short of the £18,600 and well over the minimum wage annual income of just over £13,000.  Importantly the sponsor was also a British citizen.

We do have to wait and see whether or not the UKBA will seek to tow the official line again and apply for permission to appeal the determination in this case.  On my side, I sincerely hope that this couple will be allowed to get back to living and working in peace without any further interference from the UKBA telling them how much they should be earning.

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Sarah Pinder

Sarah is a specialist immigration barrister at Goldsmith Chambers in London. She also practices in family law and has a particular interest in cross-over issues within the two areas of law. Prior to joining the Bar, Sarah worked for 6 years in the not-for-profit sector as a specialist immigration caseworker.


3 Responses

  1. My honest opinion is that T. M. is determined to make the UK a CITIZENS ONLY (born in the UK) country. She appears to have an attitude which is of great concern to me.
    I would NOT live in the UK even if I was paid to!
    I have family there who are in real trouble because of her. Home Office made BIG mistakes and now they haven’t the slightest intention of doing the right thing for them, putting things right and fixing the problem.
    This woman really worries me !

  2. It’s not just a UK thing. Australia’s immigration policy over the generations must be one of the world’s most explicitly racist. Immigration policy is just one manifestation of the rich and powerful seeking to preserve it’s advantages over the rest of us. The wealthy have no borders (and very few other laws that impinge on their right to do exactly what they want).

  3. Suppose one spouse is a Settled person and student, the other spouse a tier 4 student. None of them are working at the time of application (in-country). However, there is third party support in relation to accommodation and maintenance available. The FLR (M) application is made relying on Paragraph 281 and 284 of the Immigration Rules arguing that “STUDENTS” be exempt from the financial requirements under Appendices FM and FM-SE. The argument is that students be treated in line with those in receipt of DLA. I think the Appendices interfere in the Student sponsor and the student applicant’s HRs. What is your opinion in contesting such an appeal in the first tier tribunal.