In 2012 the government introduced a minimum income requirement (MIR) for non-EEA migrants wanting to join spouses or civil partners in this country. There’s no allowance for past earnings or earning potential so the spouse or civil partner in the UK has to meet the requirement unless the applicant can meet a little known savings test; there are some rarely travelled snickelways here which I’ve used for a few clients with some success.
The MIR is £18,600pa. Predictably this caused lots of fractured families, appeals based on the human rights and now a judgement in the Supreme Court.
The court is comfortable with the government’s underlying aim of limiting recourse to welfare benefits and migrants having sufficient resources to play a full part in British life. It then sidesteps the awkwardness of a National Living Wage at a level which seems to deny this because it accepts the threshold was chosen rationally. However the court identifies a couple of flaws:
- the instructions to decision makers do not adequately reflect the duty to protect the interests of children who’ll be affected by decisions concerning a parent; and
- while the simplicity of the MIR is not irrational, its operational application shouldn’t be constrained by rigid restrictions. The instructions to decision makers are too prescriptive and should not preclude them from taking account of alternative sources of funding.
I’ve seen reports of both the Home Office and human rights campaigners claiming the judgement as a victory - a sure sign of a complex decision which demands the digestion time denied by news cycles. My impression is that the judgement implies some new but limited flexibility for applicants and while that’s a good thing it’s far from clear where and how that flexibility will operate. Under those circumstances my advice in most cases will be to stick close to the letter of the rules unless you’ve the deep pockets required to fund the next test case.
If you do want to be a test case you’ll need to be patient. Latest statistics reveal the appeal backlog has risen to 62,903 cases while the number of Immigration Judges in the First Tier Tribunal fell over the last 3 years from 479 to 319.