Since the Immigration Rules were changed in July 2012, the number of visa approvals for partners has fallen significantly. Many applicants have been hit by the requirement to prove a gross UK income of £18,600.
Some have resorted to moving to other European countries with their family members, so that they can eventually sidestep the more draconian aspects of the Immigration Rules.
Two important cases have developed the position for affected families: R ( MM & Others ) v Secretary of State for the Home Department 2013 EWHC 1900 (Admin) (known as “ MM ”); and the European case of O v The Netherlands  EUECJ C-456/12 .
The Government’s appeal in MM was heard in the Court of Appeal earlier this month. Last year, the High Court ruled in MM that the minimum income rules would be likely in many cases to breach applicants’ rights to family life under Article 8 of the European Convention on Human Rights.
The decision in the appeal case has been reserved, but reports from those involved (including the support group BritCits http://britcits.blogspot.com/) suggest that the general attitude of the Court was sympathetic. However, it is highly likely that the Court of Appeal’s decision will itself be appealed to the Supreme Court in this important matter.
The Government has adopted a policy of placing applications on hold, if failure to meet the income requirement would be the only reason for a refusal. There are now over 3,000 of these applications, some of which have been held for over a year. We are also aware of cases held under the policy in error, where the income requirement is in fact met. Due to the Government’s policy, there can be no decision in those cases and consequently no appeal as a means of addressing the error.
The case of O v The Netherlands supports people who have decided to leave the UK to work in another European country. The much earlier case known as Surinder Singh confirmed that when a person exercises their right to free movement in this way, and then returns to their home state, they do so under European law. This means that their partner has a right to accompany them to the UK without having to meet the income requirement under the Immigration Rules. The European Court concludes in the case of O that residence abroad of at least 3 months, during which family life is ‘created or strengthened’, should support use of European law for family members on return to the UK. This is more generous than the current wording of the relevant UK Regulations and guidance.
Families affected by these cases have a number of options, depending on their circumstances:
- Where there is a case that the requirements are in fact met and the case is being held in error, make strongly-supported representations to remove the case from holding. For out-of-country applicants, consider a fresh application
- If the income requirements can now be met, consider making a fresh application, which should be dealt with within normal timescales
- Where the minimum income requirement of £18,600 cannot be met, they can continue to wait for the outcome of their case, or consider using the European route
Dutton Gregory’s Kitty Falls has vast experience of advising on all kinds of family immigration applications, and can advise you on the law and practicalities that apply to your individual situation.
T: 023 8021 3291