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Supreme Court upholds spouse minimum income requirement

22 February 2017

The Immigration Rules regulate immigration of non-Europeans into the UK. Under the Rules, a non-EEA spouse must earn £18,600 each year before being allowed to join their partner in the UK. The lawfulness of this “minimum income requirement” has been scrutinised and ultimately upheld by the Supreme Court, although with some criticism.

The claimants argued that the requirement is unlawful because it is incompatible with their right to family life under European human rights law. In addition, it was argued that by setting the requirement, the Home Secretary failed to take account of her duty to safeguard and promote the welfare of children when making decisions that affect them.

  • The Supreme Court upheld the lawfulness of the minimum income requirement. It said that the income threshold is acceptable in principle and the fact that it may cause hardship does not mean it is unlawful.
  • However, the court said that the rule unlawfully fails to take proper account of the Home Secretary’s duty to protect children. As a result, the rule must be amended to make it clear that this duty has been taken into account.
  • The court also said that entry clearance officers must be able to consider alternative sources of funding when dealing with a claim under human rights law. Currently, there are restrictions on taking into account the prospective earnings of the foreign spouse, or guarantees of third party support. The court said that this is harsh, but not irrational. However, it said that in human rights cases, entry clearance officers should be allowed more discretion.

As a result of this judgment, there will be some changes to the relevant rules and guidance. The minimum income threshold remains, but the ways in which applicants meet the threshold may be broadened.

If you have any questions please do not hesitate to contact Andrew Osborne or the immigration team member you work with.

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