This case concerns a challenge to the minimum income requirement for British citizens, and recognised refugees, inserted into the Immigration Rules under Appendix FM in July 2012.
In considering whether or not the requirements of Appendix FM amounted to a proportionate interference with an applicant’s right to respect for their family life, the Honourable Mr Justice Blake considered the following:
- The Migration Advisory Committee set the amount of £13,400 as the lowest maintenance threshold under the benefits and net fiscal approach, which is significantly lower than £18,600;
- Out of the 422 registered occupations listed in the 2011 UK Earnings Index, only 301 earn above the £18,600 minimum;
- The Rules only allow an applicant to rely on savings above the minimum level of £16,000;
- The Rules require an applicant to demonstrate maintenance for two and a half years as opposed to one year;
- The Rules disregard the earning capacity of the foreign spouse coming to the UK;
- The Rules completely rule out credible and reliable evidence of third party support.
He considered that British citizens have ‘a fundamental right of constitutional significance recognized by the common law’ to reside in their home country and that ‘An inability to continue to reside in the country of one’s nationality because of the exclusion of a spouse of a genuine relationship is an interference with that right of residence.’
He concluded that when it comes to the financial requirements, for British citizens and for refugees, the combination of more than one of the factors listed above is so onerous as to amount to an unjustified and disproportionate interference with a genuine spousal relationship, with the result that: ‘The consequences are so excessive in impact as to be beyond a reasonable means of giving effect to the legitimate aim.’
Mr Justice Blake explained how the figure of £18,600 had been inappropriately reached by the Migration Advisory Committee, and could not be the appropriate benchmark:
‘The Migration Advisory Committee were clear in their advice that they were providing statistics about the level at which any family would have no recourse to means tested benefits of any kind. They were thus professionals in ‘the dismal science’ of economics and not making an assessment of when it would be justified to prevent a British citizen or refugee from being joined by a spouse on economic grounds alone. Their economic advice cannot provide a sufficient justification for the terms in which the policy is set.’
He did not strike down the financial requirements of the Rules as unlawful in this decision, but did conclude that they are disproportionate when applied to British citizens and recognised refugees, and put forward suggestions for the Secretary of State to amend the requirements as follows:
- Reduce the minimum income required of the sponsor alone to £13,500; or thereabouts;
- Permit any savings over the £1,000 that may be spent on processing the application itself to be used to supplement the income figure;
- Permit account to be taken of the earning capacity of the spouse after entry or the satisfactorily supported maintenance undertakings of third parties;
- Reduce to twelve months the period for which the pre-estimate of financial viability is assessed.
Whether or not the Secretary of State will amend the rules to incorporate any of these suggested changes remains to be seen. In the mean time, The Home Office have announced that while they consider the implications of this judgement, they are pausing decision-making on all applications which would be refused on the grounds that the applicant fails to meet the financial requirements under Appendix FM.