Minimum Income Threshold

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One of the more challenging aspects of my immigration practice is trying to assist families kept apart by the minimum income threshold in the Immigration Rules. In a nutshell this requires applicants or their partners (parents in the case of children) to have an annual gross income in the UK of at least £18,600 (more if they have dependent children) alternatively savings of up to £62,500.

The threshold was introduced in 2012. It replaced the previous requirement for applicants to demonstrate they could maintain themselves "adequately" without recourse to public funds. The official line is that the threshold was devised to ensure families have the wherewithal to participate in life in the UK and integrate into British society. That seems utterly reasonable - but there are legal and practical difficulties.

The legal difficulty is that the threshold cuts across Article 8 of the European Convention on Human Rights. The practical difficulty is that it removed the discretion Entry Clearance Officers had to consider applications on their particular merits. Inevitably this has thrown up thousands of deserving cases which met the old rule but fail the new test.  Inevitably there was litigation.

The Court of Appeal has upheld the threshold. The Judges had reservations about its level but clearly accepted that a lot of study and thought had gone into it; they said it couldn’t be characterised as irrational, inherently unjust or inherently unfair. Now a group of 25 MPs led by Nick Harvey MP (Liberal Democrat, North Devon) have put down a motion in Parliament condemning the threshold as arbitrary, noting that it unfairly discriminates against those who live in parts of the country with low wages and calling for flexibility.

I am all for flexibility especially if it resolves the genuine hard cases which I see. However it's bonkers to suggest the threshold is arbitrary in the face of a two day hearing before the Court of Appeal leading to a 53 page analysis of a policy making process which the court (unusually) found to be both rational and legitimate. Discriminatory? Well, as Lord Justice Kay observed in an earlier case, immigration law is inherently discriminatory.

It occurs to me that it might be more pertinent to ask why the government has set the National Minimum Wage at very approximately £13,500 per annum when the Home Office says that in order to be part of British society one needs at least £18,600.