The introduction of the £18,600 salary requirement for the spouse visa caused somewhat of an uproar to foreign migrants in the UK. Indeed, it is ironic that even many UKBA workers do not earn this sum. However, a recent High Court case called MM and Others v Secretary of State  EWHC 1900 (Admin) may cancel this £18,600 requirement. This case was decided on 5th July 2013 and not much analysis has been done on this case by the public and we see many people quoting the Q&A on the UKBA website. But the UKBA are the defendant in this matter and so if they are conservative with the information they are currently providing, then that is understandable. So this article will provide an analysis of the effect of this case and whether applicants should change the way they make their spouse visa application.
First of all, let us remind ourselves of the basic immigration rules. Assuming the UK spouse wishes to apply for their spouse member in the foreign country to come to the UK, then only the UK spouse’s income will count towards meeting the £18,600 requirement. The current law affects families where the UK spouse:
- Does not earn more than £18,600 per year (assuming there is no children);
- Earns more than £18,600 but has not been employed with the same employer for more than 6 months;
- Has different employers during the past 12 months but his salary does not amount to more than £18,600.
If the applicant is in the UK (ie both spouse members are in the UK), then both of their income can count. However, the applicant is also required to be with the same employer for more than 6 months or meets the salary requirement with different employers for the past 12 months.
Applicants can overcome this problem if the sponsor has cash savings (and the applicant too if she is in the UK) to meet the deficit. The minimum amount of cash savings required is £16,000 and needs to have been held for more than 6 months.
For any shortfall, the following equation is used:[X (shortfall) x 2.5] + 16,000 = cash savings required
For example, if the UK spouse earns £15,000 then he is short of £3,600. He requires £25,000 cash savings, to be held for 6 months:[£3,600 x 2.5] + 16,000 = £25,000
MM decided that the salary requirement was contrary to the human rights of the claimants in that case. The Judge, Mr Justice Blake, said that it denies low-wage earners in full-time employment the ability to be joined by their foreign spouse, unless they have wealthy relatives or they have won the lottery. The Judge decided that it was disproportionate to have a minimum salary of £18,600 or having a savings figure of £16,000. In making this decision, he considered the following requirements were disproportionate:
(i) The Migration Advisory Committee identified £13,400 as the minimum threshold which is equivalent to the minimum wage for a 40 hour week.
(ii) Expert reports show that of 422 occupations listed in 2011, only 301 were above the £18,600 threshold.
(iii) Requiring a minimum of £16,000 savings before any savings can be counted.
(iv) Using 30 months as an income projection, rather than 12 months.
(v) Disregarding evidence of third parties who can provide financial support.
(vi) Disregarding the spouse’s own earning capacity.
In considering these factors, the Judge then decided that there were less intrusive responses available:
(i) The minimum salary could be decreased to £13,500, which is equivalent to the minimum wage working at 40 hours per week.
(ii) Any savings over £1,000 can be added on to the salary.
(iii) Earning capacity of the spouse can be taken into account after entering the UK.
(iv) The income projection be reduced to 12 months.
In MM, there were 3 claimants – 2 were British citizens and 1 was a refugee. The Judge considered the British citizens have a constitutional right to live in their home country but that this salary requirement would cause around half of the British population to live with their spouse outside the UK. It is noted that the 2 British citizens in this case are of Pakistani origin. For refugees, they have been forced to leave their own country. To force a refugee to make a choice between marrying their partner or leaving their country of refuge is simply unreasonable. However, MM did not deal with those with Indefinite Leave to Remain. The Judge said that stricter immigration rules can be applied to foreign sponsors who are voluntary migrants. This is confusing as ILR holders would be foreign voluntary migrants, but it can also be argued that the 2 British citizens in MM were also foreign migrants as they are originally from Pakistan. Our opinion is that ILR holders have the same benefit as British citizens as the immigration rules say that these people are ‘present and settled’ here and there is an expectation that they will continue to live here.
The UKBA say on their website that they are considering the High Court judgment and this probably means they are considering whether to appeal. If they do appeal, then it could be many months before there is a court decision and the spouse visa application will continue to be suspended until then (if the sponsor does not meet the salary requirement). An alternative to the UKBA appealing, is for them to consider changing the Immigration Rules to reflect the Judge’s recommendations in MM.
So what does this mean for the UK sponsor? If the sponsor is not earning £18,600 or has not been with the same employer for the past 6 months, then it is recommended that the following action be taken:
(1) The UK sponsor has to be earning at least £13,500. More if there are children but no specific amount has been considered in MM.
(2) If the salary is less than £13,500, savings above £1,000 may be counted.
(3) The applicant can provide evidence of any UK job offers. Or, she can provide her CV with evidence of any qualifications.
Assuming that the above can be done, then our initial opinion is that an application can be made now. Or if the visa has been refused because of the salary requirement, then an appeal can be submitted based on the reasoning of MM. A lot depends on whether UKBA appeal and the outcome of that appeal, but in light of the positive judgement in MM, we do consider that many applicants would obtain their visa if the UKBA proceed to apply the reasoning of MM rather than the current immigration rules.