Supreme Court Approves The Government's Minimum Income Rule For Non-EU Spouses


The Law Of… keeping families together

The Supreme Court has backed the Secretary of State’s £18,600 minimum income rule for British nationals to be able to bring their non-European spouses into the UK.

Non-EU spouses lose appeal against minimum income rule

Judges presiding in the case rejected an appeal made by 4 families over how the rule breached their basic human right to having a family life.

Emma Brooksbank, Partner and Head of Immigration (Leeds), explains why this decision threatens to tear apart thousands of families living together in the UK.

Tackling Net Migration

As part of her plan to reduce net migration into the UK when she was Home Secretary in 2012, Theresa May made it a legal requirement for British spouses or civil partners to earn at least £18,600 in order to be able to bring their non-EEA partners into the UK.

This rule was also put in place to stop foreign spouses from relying public funds to support them once they come into the UK.

In 2015, the £18,600 threshold was estimated to prevent 41% of British workers – 55% of which were women – from being able to bring a foreign spouse into the country. If a family has more than one non-European child, this threshold increases to £22,400.

The non-European partner's income is not counted towards the threshold.

Putting Families' Futures In Jeopardy

This decision will have a serious impact on the thousands of families currently unable to live together due to the fact that one of the parents doesn't meet the income requirement.

Concerns have also been raised by campaigners over the future of children separated from one of their parents, including the estimated 15,000 British children who have been forced to grow up as 'Skype kids' in order to see their parent at all.  

Despite ruling in favour of the Government's income requirement and its purpose of tackling net migration, the Supreme Court acknowledged that this rule has caused a lot of heartache and difficultly for families.

Lord Carnwarth said that he and the other judges found flaws with the Government's rule, including the fact that the treatment of children was not properly taken into consideration, as well as an inability to consider "alternative sources of funding"  when assessing the earning potential of a spouse.

They accepted that the income rule has a "particularly harsh effect" on British nationals who got married or entered into serious relationships whilst living or working abroad and now want to return to the UK with their partner.

The Justices added that this rule is also a big problem for couples whose earnings are unlikely to equal or exceed £18,600 – in particular, women from ethnic minority groups – who are more likely to be affected by the gender pay gap.

Due to the issues with the income requirement rule, the ruling might give hope to some of the families with children who have been separated. But the fate of the 4 families who brought the appeal won't become clear until their cases are each reconsidered.

Emma comments:

"This is a sad outcome for families in the UK who have been separated against their will due to a flawed rule, which has been identified as harsh by the Justices of the Supreme Court."

"Many families will never be able to reach the threshold, casting doubt over whether they'll be reunited and allowed to live together."

"The Government has also failed to consider the pressure that this rule places on the parent who has been left to support their child alone in the UK, balancing their working life with their caring responsibilities."

"If this news directly affects you or someone you know, we recommend that you speak to our Immigration team as soon as possible."

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