Spousal visas and the income rule

The UK Supreme Court has issued its decision in MM v Secretary of State for the Home Department [2017] UKSC 10, one which could have significant implications for individuals applying for a spouse visa to live in the UK.

The particular Immigration Rule in question, that UK nationals wishing to sponsor a non-EU partner or spouse to live in the UK had to be earning £18,600 per year, has been the subject of much debate and challenge since it was introduced in July 2012.

The subject of the debate was whether or not the minimum income threshold was compatible with human rights law, and after the High Court in England & Wales ([2013] EWHC 1900 (Admin)), ruled that the rules breached the right to private and family life, the decision was reversed by the Court of Appeal ([2014] EWHC Civ 985).

As a result of the rule, many families have been prevented from returning to the UK or have been separated where one spouse works in the UK but fails to meet the earnings threshold.

What did the Supreme Court say?

The Supreme Court issued its decision on 22 February 2017 and, much to the disappointment of many affected families, it confirmed that the UK Government was entitled to apply a minimum income threshold.

Nonetheless the decision did contain welcome news for some families, as it confirmed that:

• the current Immigration Rules, and guidance issued to decision makers, did not adequately reflect the statutory duty to treat the best interests of children as a primary consideration;
• in some cases decision-makers should consider verifiable offers of financial support from friends and family when assessing cases; and
• in some cases the earning potential of the non-EU spouse will be a relevant consideration.

What will the judgment mean in practice?

The Supreme Court decision will mean the Home Office needs to amend the Immigration Rules and guidance issued to decision-makers. Immigration law changes on a very regular basis and the Home Office is likely to be able to implement changes quickly in order to comply with the Supreme Court decision.

We will need to wait and see what amendments are made but, in my view, the most likely outcomes are:

• The standard position where someone fails to meet the financial requirement through their own earnings will remain – the visa application will be refused.
• Decision-makers will be given discretion to consider a wider range of factors in cases where a child is affected by the rules, either because the family are unable to return to the UK or because they have been separated from one parent due to the financial requirements.
• A wider range of factors will apply regardless of whether the child is in the UK or is living elsewhere.
• The changes will not mean that the presence of a child, inside or outside the UK, will automatically lead to a visa being granted, but the additional flexibility will lead to enhanced prospects for success.
• Decision-makers will be allowed to consider offers of financial support, or the earning potential of the non-EU national, where there is a strong case for consideration outside the rules. This may not be limited to cases involving a child, but is likely to be restricted to cases where separation or relocation of the British spouse may involve a significant degree of hardship.

The Supreme Court decision is unlikely to lead to a large increase in the number of successful applications under this route, but will offer hope to some families who have been separated as a result of the application of the Immigration Rules. These cases are likely to turn on their own facts and it will be important to submit clear evidence to ensure the best chance of success.

Even once the rules are amended, the spouse visa route will continue to be complicated and there will be strict evidential requirements that must be met before an application can be successful. In my experience, many applicants who meet the £18,600 threshold experience difficulties due to a lack of knowledge of the stringent rules relating to evidence, and this will continue to be the case unless specialist advice is sought.

In all likelihood, this is not the last we will hear about the minimum financial requirement, as the First-tier Tribunal will now need to consider how to apply the MM decision in practice, particularly in cases where someone without children falls just short of the £18,600 threshold.