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Legal Implications of Doubling the Family Visa Income Requirement

As many readers will be aware, part of the Home Secretary’s recently announced “five-point plan” on immigration included a significant increase to the minimum income threshold for family visas under Appendix FM of the Immigration Rules.

Whereas currently those eligible under Appendix FM (ordinarily the partners of British citizens or individuals settled in the UK) need to demonstrate that they meet a minimum income requirement of £18,600, under the proposed changes this threshold will more than double to £38,700 (UPDATE: Home Office Revises Minimum Income Requirement for Spouse, Partner and Family Visas to £29,000)

This post delves into the potential ramifications of this significant increase, examining the current landscape, projecting its impacts based on insights from the Migration Observatory, and anticipating the legal challenges that are likely to emerge. Drawing parallels with past legal precedents, particularly the Supreme Court’s decision in R (on the application of MM (Lebanon)), we aim to shed light on the considerations that may form the basis of future challenges.

Impact Analysis: Migration Observatory Insights

As previously mentioned, individuals qualifying under Appendix FM, typically the spouses of British citizens or individuals residing in the UK, are currently required to prove that they meet a minimum income threshold of £18,600. However, the current UK Government proposes a substantial increase, with this threshold soaring to £38,700.

The wide reaching and potentially devastating impact this will have on individuals and families is already apparent. As outlined in our previous post, according to the Migration Observatory, just under 70% of British employees working in the UK earned less than the new income threshold in 2023 and the increased income threshold will disproportionately impact certain demographic groups. Specifically, while approximately 60% of men earn less than the new income requirement, this percentage rises to over 75% for women. Moreover, nearly all part-time employees earn below the threshold, effectively restricting the ability of migrant dependents to reside in the UK to full-time workers.

Legal Challenges on the Horizon: Revisiting the Supreme Court’s Decision in MM (Lebanon)

It seems clear that legal challenges will follow. At this stage, particularly with so few details of the new rules available, it is not possible to predict the outcome or the scope of the arguments that might be advanced in those challenges.

However, this is not the first time that the minimum income requirement has been considered by the courts. This article will revisit the Supreme Court’s decision in R (on the application of MM (Lebanon) (AP) (Appellant) v. Secretary of State for the Home Department (Respondent) [2017] UKSC 10, in which the current £18,600 minimum income requirement was the subject of legal challenge, and will consider how the considerations at that time might shed light on the events that are to come.

Legal Grounds: Challenge under Articles 8, 12, and/or 14

The Supreme Court was considering four judicial review claims which constituted a general challenge to the minimum income requirement in Appendix FM of £18,600, and the ongoing appeal of SS, whose entry clearance application was refused. The requirement was challenged on the ground that it was incompatible with the rights of the claimants and their partners (and in one case a child) under Articles 8, 12 and/or 14 of the European Convention of Human Rights. It was also contended that the requirement was unreasonable and ultra vires on common law principles. 

The Court’s Considerations: Legitimacy of Minimum Income Requirement

The Supreme Court was asked to consider the legality of the rules, rather than simply their application in an individual case. It is this kind of challenge which one might anticipate in respect of the new minimum income requirement. Of course, there will also inevitably be a large number of individual challenges to the application of the rules in specific cases and arguments concerning the specific proportionality of individual decisions. 

It was made clear that such general challenges are very difficult. The Court must consider whether the measures strike a fair balance between the rights of the individual and the interests of the community. Moreover, it is not enough that a rule may lead to infringements of that principle in individual cases. The Court would not be entitled to strike down a rule unless satisfied that it was incapable of being operated in a proportionate way and so inherently unjustified in all or nearly all cases.

The Supreme Court acknowledged that even the current minimum income requirement of £18,600 had caused and would continue to cause significant hardship to many thousands of couples who would have a good reason for wanting to make their lives together in the UK. However, the fact that the rules cause hardship to many was not sufficient to warrant the conclusion that it was incompatible with Convention rights or otherwise unlawful at common law. 

The aims of a minimum income requirement were found to be entirely legitimate and sufficient to justify the interference with, or lack of respect for, the Article 8 right. The stated aim was to ensure that a couple did not have recourse to welfare benefits and had sufficient resources to be able to play a full part in British life. It was argued that there was no rational connection between those legitimate aims and the particular income threshold. However, this argument was rejected, with the Court making specific reference to the work of the Migration Advisory Committee in determining the threshold as “a model of economic rationality”.

Proposed Threshold: Rationale and Concerns

Turning to the present, it remains to be seen on what basis the proposed threshold of £38,700 has been reached. The rationale for such a substantial increase may be relevant to the merit of an argument as to whether there is a rational connection between the government’s aim and the new income threshold.

Disparate Impacts: Gender and Ethnic Disparities

It was acknowledged that the minimum income requirement may constitute a permanent impediment to many couples and that female sponsors are disproportionately affected, as are sponsors from certain ethnic groups. Such disparate impacts are expected to be exacerbated by the impending changes. As noted above, the Migration Observatory has stated that the increased income threshold will disproportionately impact certain demographic groups. For example, whilst 60% of men earn less than the new income requirement, this percentage rises to over 75% for women. 

Discrimination Considerations: Article 14 and Equality Impact Assessment

The Supreme Court agreed with the Court of Appeal, for reasons also articulated by the High Court, that no separate issue arises in respect of discrimination under Article 14. The High  Court concluded that setting the minimum income threshold above the subsistence level was a judgement in economic as well as immigration policy, and an appropriately broad discretionary area of judgement must be afforded to the Secretary of the State in such a case. It was found that no overtly discriminatory criteria had been used. It was inevitable, having regard to the legitimate aim, that the measures would disproportionately impact migrant families on low incomes, but this is the group to whom the legitimate policy aim was directed. Further, the fact of such differential impact had been sufficiently noted in the equality impact assessment for the due regard required by domestic law to have been paid to it. Once more, it remains to be seen whether the same conclusions could be drawn in respect of the new threshold.

Individual Cases vs. General Rules: Balancing Convention Rights

As above, the Supreme Court was clear in its emphasis that it is generally the decision in an individual case which may be incompatible with the Convention rights, rather than the relevant general rules or policies.

Seeking Legal Guidance: Options for Individuals

The provisions of the Immigration Rules themselves allow for Article 8 considerations in the event that specific requirements are not met, and it is these considerations which will need to form the basis of the application from those who do not meet the minimum income requirement when the changes come into force. However, the details of the provisions yet to be published will provide further insight into the potential basis for more general challenges. In the meantime, individuals who might be affected may wish to seek legal advice in respect of their options.

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