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High Court judgment on income threshold for UK marriage visas revealed

August 5th, 2013

Since July of 2012, the minimum income threshold for those wishing to bring a foreign partner to the UK on a settlement fiancee or marriage visa has been £18,600 a year. In rules laid out by the UK Border Agency, if the sponsoring UK citizen or legal permanent resident wishes to include a child in the settlement visa application, it rises by £3,800 for the first child, then another £2,400 is required for each additional child. Because the minimum income level required to apply for a UK marriage visa is way more than the average amount earned by almost half of the UK working population, three cases were taken to the High Court on the basis that the rules were discriminatory and interfered with Article 8 of the Human Rights Act, the right to a private and family life.

The High Court judgment did not result in the UK Border Agency rule being summarily overturned. The judges determined that the rules were ‘onerous and unjustified’ but they were not unlawful. It had been hoped by those affected and many other professional groups that the threshold rule would be stricken from the record and stopped forthwith, but the High Court found themselves unable to go that far, whilst nevertheless recommending that the UK Border Agency (UKBA) look at the current rule with a view to adjusting the amounts involved as fast as possible.

As an interim measure while the Home Office decides on whether it will appeal, all cases where the financial requirement is the only stumbling block which stands between an acceptance and a refusal of a UK marriage or partner visa application will be put on hold. This will affect only a relatively small number and will apply solely to applications made under Appendix FM to the Immigration Rules after 5 July 2013. Any other reason for refusal other than strictly financial will not be put on hold but must be considered final.

The High Court made some suggestions which the Home Office does not have to follow, but are sensible ones in the view of campaigning organisations. Setting £13,000 as the minimum income threshold has been greeted with enthusiasm as this is a much more likely salary coming into the household from the sponsor’s employment alone. Although they were hoping for the threshold to be overturned completely, the Joint Council for the Welfare of Immigrants (JCWI), said, through a spokesman, that the ruling proved the rules were ‘disproportionate’.

An All-Party Parliamentary Group on Migration, meeting some weeks before the High Court handed down its judgment, are in broad agreement that the threshold should be re-assessed, to minimise separation of families and the resultant hardship. The UK Border Agency (UKBA) has made a statement suggesting that they are looking again at the impact the rules have on the average family seeking to reunite in the UK. More people are taking matters into their own hands and using the Surinder Singh ‘loophole’ which hinges on the difference in rules within the EEA and the UK – enshrined in EU law, this relies on working status and is the answer for many, although those who are not able to leave their jobs to work abroad, even briefly, are still held in limbo.

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