The Supreme Court has ruled that the minimum income requirement placed upon non-EEA nationals seeking to enter or remain in the UK with their British family members (e.g. spouse or co-habiting partner) does not breach the human right of respect for private and family life.
A non-EEA spouse or co-habiting partner of a British national can apply to live and work in the UK as the dependant of that British national but the non-EEA applicant must demonstrate that their British family member has a gross annual income of at least £18,600 per year (the Minimum Income Requirement (“MIR”)).
If the couple has a child (who is not a British or EEA national), the MIR rises to £22,400 per year and then by an additional £2,400 per year for each subsequent child.
The earnings of the non-EEA applicant cannot be taken into account to satisfy the MIR, even if they have a job or job offer in the UK with earnings exceeding £18,600. In addition, any support from third parties (e.g. the couple’s parents/other family members) is ignored for the purposes of the MIR.
The alternative to demonstrating annual income of £18,600 is to show that the couple has substantial savings. If relying solely on savings, there needs to have been a minimum of £62,500 cash savings available for the 6 month period before the application is submitted (plus additional funds if there are non-British or EEA dependent children).
Unmarried partners can apply for the right to live and work in the UK on the same basis as spouses if they can evidence that they have lived with their British national partner for the last two year period but the same MIR applies.
However, the MIR does not apply to the EEA spouses or co-habiting partners of British nationals as they currently still have the ability to live and work in the UK under EU free movement rights.
Interference with human rights
Many British nationals and their non-EEA partners have argued that the MIR interferes with their human rights under the European Convention (ECHR), in particular, their right to respect for private and family life.
Home Office justification for the MIR
The Home Office state that the MIR has the legitimate aim of safeguarding the economic wellbeing of the UK - ensuring that those who choose to establish their family life in the UK should have the financial means to be able to support themselves and their partner without being a burden on the taxpayer and that the British partner should bear the financial responsibility of ensuring that their non-EEA partner is sufficiently supported to be able to integrate and play a full part in British society.
When reviewing compliance with the Immigration Rules, including the MIR, the Home Office considers whether the application raises any exceptional circumstances which might warrant a waiver of the usual requirements and considers that there is enough flexibility in the current rules to prevent disproportionate interference with human rights.
In a Supreme Court judgment issued on 22 February 2017 , the Supreme Court accepted that the MIR causes significant hardship for many couples and that this is a particular concern in relation to children who are impacted. However, it did not find that the MIR was incompatible with rights under the ECHR, such as the right to respect for private and family life.
The Supreme Court accepted that the MIR is part of an overall strategy aimed at reducing net migration and ensuring, so far as practicable, that couples do not have recourse to welfare benefits and have sufficient resources to be able to play a full part in British life. The Supreme Court found that these aims are both legitimate and sufficient to justify the interference with the right to respect for family life.
However, the Court did acknowledge that the guidance for immigration officers as to when ‘exceptional circumstances’ might arise, allowing the Home Office to depart from the MIR, did not take proper account of the United Nations Convention requirement to safeguard and promote the welfare of children when making decisions which affect them. It therefore made a declaration that the Home Office rules and guidance are unlawful in that respect.
In addition, although it did not find the MIR open to challenge, it recommended that either the guidance to immigration officers or the MIR itself be revised to indicate the circumstances in which alternative sources of funding should or might be taken into account to ensure that the decisions made by immigration officers do not breach the ECHR.
R (on the application of MM (Lebanon)) (Appellant) v Secretary of State for the Home Department (Respondent); R (on the application of Abdul Majid (Pakistan)) (Appellant) v Secretary of State for the Home Department (Respondent); R (on the application of Master AF) (Appellant) v Secretary of State for the Home Department (Respondent); and R (on the application of Shabana Javed (Pakistan)) (Appellant) v Secretary of State for the Home Department (Respondent) SS (Congo) (Appellant) v Entry Clearance Officer, Nairobi (Respondent)  UKSC 10