The impact of the new minimum income requirement of £18,600 for British Nationals and Permanent Residents who want to bring non-EEA spouses or partners to the UK

The impact of the new minimum income requirement of £18,600 for British Nationals and Permanent Residents who want to bring non-EEA spouses or partners to the UK

A summary of the relevant immigration rules is set out in the appendices.

In the Statement of Intent of June 2012, the intention behind the rule changes was described, in summary, as
1. To define the circumstances in which a person’s right to respect for private and family life can constitute a basis for entry or stay in the United Kingdom;

2. To “…ensure that there is a clear focus on whether the relationship between applicant and sponsor is genuine, that the sponsor can properly support their partner and any dependants financially, and that the partner is able to integrate into British society.”

These rules do not fit with the fact that an assessment of family life Under Article 8 of the European Convention on Human Rights must be cumulative and must be made on a case by case basis. In 2008, in EB (Kosovo) v Secretary of State for the Home Department [2008]
UKHL 41, the House of Lords made clear that:
“The search for a hard-edged or bright-line rule to be applied in the generality of cases is incompatible with the difficult evaluative exercise which article 8 requires.”

The new rules are also at odds with the Prime Minister’s speech on 15 August 2011, in which he expressed a desire to priorities family life.

In summary, the effects of the new rules are:

Families are being separated in circumstances where the sponsor is required to work in the UK for at least six months before the application can be made; The minimum income threshold for spouses and partners is keeping families apart for prolonged periods or even permanently in some circumstances. This is for two main reasons.
First, not only do the immigration rules set out a minimum income threshold, but they also define what income will be taken into account, how income will be calculated and time periods during which such income must have been received. For example, the following types of income are not taken into account:
(a) Financial support from family members;
(b) The applicant’s current and future income from employment or self-employment where an entry clearance application is being made;
(c) Earnings from self-employment in the individual’s current financial year; and
(d) Savings, unless they have been held for a full six months.
Furthermore, the rules specify how “gross annual income” is to be calculated. For example, where an individual is in the United Kingdom and has worked for his employer for six months or more, gross annual income will be his gross annual salary at its lowest point in the last six months, rather than his actual annual salary.

In most other cases the Immigration Rules impose two tests for those in salaried employment.

First, the rules look at the income at the date of the application or, where the individual is returning to a job in the United Kingdom, the annual salary from the future employment that has been secured in the United Kingdom.

Secondly, the rules look at the gross income actually received from work in the last 12 months or, where the individual has been employed for six months or more, the salary at its lowest level in the last six months. The income threshold must be met for both tests for an application to succeed.
This means that families who do and will have an income of or above the relevant threshold find themselves having to postpone submission of an application for their income to be taken into account.

The immigration rules set out an income threshold that some families simply cannot meet. Prior to 9 July 2012 the financial requirement for family cases was that the applicant (and any children) could be financially supported and accommodated without recourse to public funds. This was held to mean
being able to show income at least equivalent to that of a couple/family on income support5. At present, this is, for a couple over the age of 18, £111. 45 significantly lower than the £18,600 threshold.

Enforced exclusion of British or settled partners and children from the United Kingdom
The new rules are not only separating families but they are preventing British or settled partners and British or settled, children from returning to live in the United Kingdom.

First, as explained above, the rules do not take the current or future income of the applicant into account where the applicant is outside the United Kingdom applying for entry clearance. This is causing problems for many families, particularly those where a British spouse has taken not only maternity leave, but a career break, to care for children and applicant is the breadwinner. Such families find themselves unable to return to the United Kingdom even though they can support themselves. For example, the financial requirement would not be met if the applicant had earned £75,000 overseas in the last year and had been offered employment in the United Kingdom for a salary of £100,000.
Secondly, while the exceptions set out in paragraph EX.1. Provide for leave to remain to be granted where the financial requirements are not met, paragraph EX.1. does not apply to those applying for entry clearance.
For the sake of completeness, there is also an exception where the sponsor is in receipt of certain benefits such as carer’s allowance or certain disability-related benefits. This applies both to entry clearance and incountry applications. However, the government has said that it will review these exemptions in April 2013

The rules are very complicated, for applicants, UK Border Agency staff and legal representatives.

The rules are extremely complicated. This is causing confusion amongst applicants, practitioners and within the UK Border Agency. For example, to meet the financial requirement for an entry clearance application on the basis of a British or settled partner’s self-employment in the UK as a sole trader, an
applicant and his/her partner must read:
Paragraph E-ECP.3.1. of Appendix FM, which sets the gross annual income threshold.
.
Paragraph E-ECP.3.2 of Appendix FM, which explains that income from the British partner’s self employment can be taken into account but not the employment or self-employment income of the applicant.

Paragraphs 13(e) of Appendix FM-SE, which says that the gross annual income test must be met from earnings in the last full financial year.

Paragraph 19 of Appendix FM-SE which says that for the purposes of the test the self-employed sole trader’s gross annual income is the gross taxable profits from their share of the business.

Paragraph 13(f) of Appendix FM-SE which says that savings cannot be combined with income from self-employment.

Paragraphs 7(a) to (h) of Appendix FM-SE, which specify the documents that must be provided as evidence of self-employment.

Paragraphs 1(a) to (l) of Appendix FM-SE, which set out general rules, including the required format for bank statements.

Our solicitors are seeing clients who are seeking advice because they do not understand the financial requirements. In many cases clients are seeking advice after a refusal having misunderstood what was expected of them.

Under the new rules form is valued over substance. A person who can meet the financial requirements set out in Appendix FM SE , but cannot or does not supply all of the required evidence (even where the evidence s/he relies upon does show that s/he or his/her partner has the required sum of money), will not meet the requirements of the rules.

The inflexible evidential requirements exclude many who are able to support themselves without recourse to public funds, including many persons in higher income brackets.

For example a self-employed sponsor must provide more than 10 specific documents evidencing income. UK Border Agency staff are only permitted to use discretion as to evidence in limited

Certain groups of people are disproportionately affected by the income threshold due to their gender, race, age and religion.

Since average earnings of women in the UK are lower than those of men, the new Immigration Rules indirectly discriminate on grounds of gender. The indirect discrimination against female sponsors thereby and male applicants, is exacerbated in entry clearance cases where only the earnings of the sponsor (i.e. the British or settled partner) may be considered. Furthermore, more women work part-time40 and often have lower incomes. Maternity leave and maternity pay affect women’s earnings and there is a risk that the new income thresholds, the details of these and of the ways in which one must evidence meeting them will give rise to discrimination on the grounds of pregnancy and maternity, both protected characteristics under the
Equality Act 2010

Since average earnings are lower for persons of certain ethnicities, the new immigration rules indirectly discriminate on grounds of race. According to Migration Advisory Committee 45% of applicants would not meet the new income threshold and two-thirds would not meet the higher recommended threshold of £25,700.