Controversial maintenance funds requirements were introduced for spouse/ partner visas (affecting non-EEA national partners of British citizens, refugees and people settled in the UK) in July 2012. The Supreme Court has upheld the requirements as lawful in principle, but did require the Government to make some changes to how they are applied in practice. These changes came into effect in August 2017.
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What is the financial (‘minimum income’) requirement?
Since July 2012 the UK’s Immigration Rules have required non-EEA nationals to satisfy a financial, ‘minimum income’ requirement in order to secure a visa to join a British/settled spouse or partner in the UK.
Available maintenance funds equivalent to a minimum gross annual income of £18,600 are required. A higher amount is required when visas are sought for non‑EEA national children.
The requirement can only be met through the sources of income and funding specified in the Immigration Rules. These are subject to conditions. For example, the visa applicant’s employment income can only be considered if they are already in the UK with permission to work. The sponsoring partner’s overseas employment is not acceptable on its own to satisfy the requirement.
The financial requirement must be met each time the migrant applies for temporary leave to remain as a family member, and when they become eligible to apply for Indefinite Leave to Remain (usually after five years).
Individual exceptions to the minimum income requirement cannot be made, but there can be some flexibility if a visa refusal would breach the couple’s human rights. The requirement does not apply if the UK-based sponsor is in receipt of Carer’s Allowance or certain disability-related benefits.
Why is it controversial?
The Government contends that the financial requirement supports integration and prevents a burden being placed on the taxpayer.
Various migrants’ rights groups consider the minimum income requirement to be unfair, inflexible, disproportionate and counter-productive.
It is acknowledged that in some cases, the financial requirement represents a significant and possibly permanent obstacle to a couple living together in the UK, and that some demographic groups are particularly affected by it due to differences in earnings.
The Children’s Commissioner for England has estimated that up to 15,000 British children are growing up in “Skype families” because their parents cannot live together in the UK due to these Immigration Rules.
The threshold for falling within the provisions for cases raising human rights issues is very high. Cases which have been refused in spite of the existence of compassionate circumstances are sometimes highlighted by the media, although it is not always possible to determine their final outcome from the coverage.
Changes made following scrutiny by the Supreme Court
In February 2017 the Supreme Court found that the minimum income requirement is acceptable in principle. However it did require the Government to make some changes to the Immigration Rules and associated policy guidance. This was in order to take proper account of the Secretary of State’s duty to have regard to the need to safeguard and promote the welfare of children, and also to take proper account of other possible sources of income and third-party financial support.
Amended Immigration Rules and policy guidance came into effect on 10 August 2017.
Since then, if an application cannot meet the financial requirement through the five sources specified in the Immigration Rules, decision-makers are instructed to consider whether there are “exceptional circumstances” which could or would render a refusal decision a breach of human rights (ECHR Article 8).
If the decision-maker considers that refusal would result in a breach of the Article 8 rights of a relevant party, they must grant the application, even if the financial requirement is not met.
If the decision-maker considers that refusal could breach human rights, the application must still satisfy the financial requirement, but the decision-maker can take a wider range of income sources into account.
Applicants granted on human rights grounds do not have to satisfy the financial requirement again when applying to renew their temporary visa, but must wait longer (10 years) before becoming eligible to apply for Indefinite Leave to Remain.