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Immigration Income Requirements: What is the real purpose?

Image By Danny Howard

About The Author

Francesca Norris (Solicitor Outreach)

Francesca is a trainee solicitor at a leading national firm, having undertaken the GDL subsequent to graduating with a Combined Honours in Arts from Durham. Her primary areas of interest are human rights, public law, clinical negligence, and criminal law.

No-one can deny that immigration control has been a political hot topic of late. When the coalition government came to power in 2010, the Conservatives promised to cut net migration to the “tens of thousands a year, not hundreds of thousands.”  Throughout the economic crisis of the past few years, the UK’s immigration rate has been frequently vilified, and arguably scapegoated, as a key reason behind the difficult job market, and as the main parties begin to gear up for next year’s general election the topic has once again become key to debates and arguments involving politicians from all sides.  The recent controversy over UKIP’s immigration poster campaign highlights how feelings run strong amongst the elected and the electorate alike.

Not only in the Commons, but in the Courts, too, is the topic of immigration control taking centre stage.  In March 2014, the Court of Appeal heard an appeal on behalf of the Secretary of State against the decision in the 2013 case of R (MM and ors) v Secretary of State EWHC 1900.  Mr Justice Blake in the MM case found that recent changes made to the minimum income requirements which must be satisfied by British citizens who wish to sponsor their partner coming to the UK were likely to constitute a disproportionate interference with the Article 8 ECHR right to family life in certain situations.  As a result of the new measures, families have found themselves separated, with non-EEA partners being unable to join their family in the UK where the British partner’s income is deemed insufficient, even in cases where the couple in question have children together.

This article will discuss the rules as they stand regarding the minimum income requirement for British citizens to sponsor their partners, and the effects the 2012 changes have had, and the approach the courts are taking in trying to balance current immigration policy with universal human rights, namely Article 8 ECHR, the right to family life.

Immigration Rules

EEA Nationals

“EEA Nationals” are nationals of the Member States of the European Union, plus Iceland, Lichtenstein, and Norway, countries which are party to the European Economic Area Agreement.  EEA Nationals do not require leave to enter or remain in the UK whilst exercising EU law rights, such as the right to free movement within the territory of the Member States (Art 21(1) TFEU), under s.7(1) Immigration Act 1988.  An EEA national partner of a British citizen therefore has the right to enter the UK under EU law (as well as under regulation 11(2) of the Immigration (European Economic Area) Regulations 2006, which provides that an EEA national must be admitted to the UK on production of a valid EEA national identity card or passport); they will also have the right to stay in the UK for an initial period of three months (reg. 13 Immigration (EEA) Regulations) , and a right to  residence beyond three months if they are a worker, jobseeker, student, or self-sufficient (reg. 14 I(EEA) Regulations). As such, there is no minimum income requirement that must be satisfied to sponsor an EEA national partner coming to the UK.

Non-EEA Nationals

Pre July 2012

 Before the 2012 changes were brought in, all that a British citizen had to show to sponsor a non-EEA national partner or family member coming to the UK was that they could be adequately accommodated and maintained without recourse to public funds.  The money for such maintenance could come from a variety of sources, including savings and employment prospects of either the sponsor or the migrant partner, and financial support from third parties such as extended family.  According to information supplied to Members of Parliament concerning the 2012 changes, the minimum sponsorship requirement before July 2012, with reference to Income Support Levels, would effectively have been a post-tax income of £5,500 per year.

Post July 2012

Following the 2012 changes, the sponsor must be able to demonstrate available maintenance funds equivalent to an income of at least £18,600 per year, plus an extra £3,800 for one dependant child and a further £2,400 for each additional child thereafter.  The sponsor’s earnings and any confirmed UK job offer may be taken into account, as may the migrant partner’s employment income if they are already in the UK with permission to work.  However, the migrant spouse’s overseas employment income, offers of future employment in the UK, or offers of third party support will not be taken into account.

The Government does cite its objective to cut net migration as a reason behind the changes.  However, it emphasises other policies, stating in the guidance document issued to Members of Parliament:

The Government considers that family migrants and their British-based sponsors should have sufficient financial resources to be able to support themselves and enable the migrant to participate in society without being a burden on the general taxpayer.It changed the maintenance requirements because it did not consider that the rules in place before July 2012 were sufficient for these objectives.

The document goes on to explain that the minimum threshold was set at £18,600 following advice from the government Migration Advisory Committee, who identified the figure as the level of annual gross pay at which a couple would not receive income-related benefits, assuming a weekly rent of £100.

Article 8

Article 8 of the European Convention on Human Rights sets out that:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

In R (MM and Others) v. Secretary of State [2013] EWHC 1900 (Admin) Mr Justice Blake found that the Financial Requirements contained in Appendix FMof the Immigration Rules were likely to amount to a disproportionate interference with Article 8, as they are not necessary in a democratic society or proportionate to the Government’s aim.  He placed particular emphasis on the £18,600 minimum income requirement detailed above, stating that Article 8 would be engaged where an applicant was earning above the national minimum wage (currently £13,400) but less than £18,600, and could show that the shortfall between the amount earned and the amount required was made up of savings, credible job offers, or credible offers of third party support.

The appeal in the case was heard at the start of March 2014, before Maurice Kay, Aitkens and Treacy LLJs.  The Secretary of State made a series of points, first arguing that Mr Justice Blake had erred in law in considering in detail whether the policy interfered with Article 8 rights, as such areas of social and economic policy have frequently been held by the Strasbourg Court as having a wide margin of appreciation in each respective country.  It has been reported that the Court appeared to accept that the financial requirements interfered with family life, and showed particular interest in the issue of the Court’s place to evaluate the “necessity” of such interference, along with whether less intrusive measures had been considered.  From the outside at least, this appears to show some sympathy towards the families affected by the requirements, and a possible inclination towards finding against the Government in this matter. 

The Secretary of State further argued that Mr Justice Blake erred in fact in finding that the minimum income requirement interfered with Article 8 rights in the generality of cases, stating that in cases where there were earnings above national minimum wage and other possible sources of income to make up the shortfall, could be considered under the instructions given to Entry Clearance Officers(ECOs) regarding the exercise of discretion and the search for exceptional circumstances.  In response, the court heard that there had not been a single instance where Article 8 or the exercise of discretion had been considered by the ECOs. As such it would seem that the new Rules do not correspond to the Government’s stated aims as the Secretary of State herself appears to be advocating for a necessary loophole in the Rules. In other words, the argument seems to be that the new Rules correspond appropriately to the Government’s aims because in cases where the Rules would not achieve those aims then the Rules may be disregarded through use of the discretion loophole. Yet, Sonel Mehta, founder of BritCits, a NGO comprising of many of those affected by the new measures, cited evidence of sponsors being refused by ECOs without any exercise of discretion where the shortfall between the sponsor’s income and the £18,600 required amounted to a mere £0.59 per week. Even if it were appropriate to justify a Rule by citing the ways in which it may be broken where necessary, the loophole cited seemingly fails to ensure that migrants who can support themselves will be granted access to the UK as it is not put into practice.

Leaving aside political arguments and hypothetical social repercussions of the MM case, let us focus on whether the £18,600 minimum income appears disproportionate enough, on basic terms, to be considered as interfering with Article 8.

In 2013, the average gross annual salary in the UK was £26,500.  Allowing for tax deductions, the average take-home salary would therefore be somewhere short of £21,000.  By these standards, the £18,600 requirement does not appear too onerous.  On the other hand, as set out above, national minimum wage is currently £13,400 per annum, far less than the £18,600 minimum required to sponsor a migrant partner under the post-2012 rules.  The difference can of course be attributed to the Government’s objective of preventing migrant partners being reliant on state support and so further burdening an already struggling system, an important and necessary consideration.

However, the major flaw in the Secretary of State’s argument is, in my opinion, the notion that where the Rules fail to achieve their stated objective they may be disregarded, and as such that they do not interfere disproportionately with Article 8 rights.  Firstly, if the Rules can be dropped and changed in the manner that such a statement implies, it seems appropriate to question the reasons for having them in place at all, rather than considering each case on its own merit.  Secondly, if there is cause for the Rules to be adapted in such manners with any regularity at all, their fitness for purpose is called into question.  Finally, there is the matter, as mentioned above, that Article 8 rights and the exercise of discretion is simply not being considered in any cases as the Rules currently stand.

Conclusion

In a difficult economic climate, with an over-burdened job market and an ever-increasing population, immigration control is of course a necessary consideration.  Although it would be ideal not to have to deal with such matters in economic terms, the reality is that there are finite resources and as such the UK simply cannot support an infinite number of migrants.  As such, the Government argues, there must be some form of means testing, and the minimum requirement must be such that it will be enough to ensure that those who wish to come and live in the UK, whether alone or to join family members already in the UK, do not unreasonably burden the welfare system.

However, the Rules introduced in 2012 do not seem to me particularly relevant to this (legitimate) aim.  If the Government’s primary purpose is to ensure that migrant partners do not become reliant on state support, it seems illogical to disregard entirely many of the means by which they will support themselves.  To disregard current earnings abroad and future earning potential in the UK in particular fringes on being nonsensical: if the idea is that migrants will not be dependent on state welfare payments, surely the logical conclusion is that they will support themselves by working.  It is here that I think the Government will most struggle to justify the necessity and proportionality of the measures to their supposed aim.  The Secretary of State’s argument that the Rules are appropriate as in situations where they are inappropriate they may be disregarded via the exercise of ECO discretion further undermines the idea that the new Rules are necessary to the stated aim, as it seems that the aim would quite regularly be better achieved by ignoring them completely.

In fact, I would argue that the actual purpose of bringing in the 2012 Rules had little to do with ensuring that migrant partners were not reliant on the state, and far more to do with the Government meeting their manifesto target of cutting net immigration.  Due to the rights of free movement and so on enshrined in EU law and incorporated into domestic law, as outlined above, to significantly reduce EU migration would be a very difficult task.  Although individual countries are permitted some discretion in EU immigration policies (to prevent problems such as overcrowding), as things stand I expect the Government would be unable to put in place new measures concerning EU migration without some repercussions.  To succeed in cutting net migration, they therefore had to implement Rules that would drastically reduce the number of non-EEA migrants coming to the UK.  To this end, they have, it seems, succeeded.  However, this is not the aim they cite as justification for the 2012 measures, and I suspect that the Court of Appeal will take note of this discrepancy in issuing their judgment.  The price for the Governments back-door “success” in this arena is being paid by those now separated from their families for arbitrary reasons, having little to do with their means and much with the Government’s desire to appear to achieve one of their manifesto pledges.  Judgment in the case has been reserved for the moment, and will be awaited keenly by the husbands and wives stuck abroad, and their husbands, wives, and often children here in the UK, some 2,628 families whose entry clearance applications for non-EEA partners to join them in the UK have been put on hold pending the outcome.  Perhaps they will soon be reunited.

 

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Tagged: European Union, Human Rights, Immigration

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