Today, the judgement in the case of R (on the application of MM) v Secretary of State for the Home Department [2013] EWHC 1900 (Admin) has marked a blow for those campaigning against the Home Office’s Appendix FM (financial requirement) which state that applicants must demonstrate earnings of £18,600 per annum when making a relationship based application. The Court of Appeal has ruled that the Home Office are justified in refusing applications in which the Applicants’ do not meet the financial maintenance requirement as specified under Appendix FM required.
Facts of the Case
MM, is a 34 year old Lebanese national who entered the UK in 2001. He was granted limited leave to remain in the UK as a refugee, which expired on 28 January 2014. MM has two brothers in the UK with similar visas and lives with his nephew and sister ‘EF’ who obtained discretionary leave to remain after the breakdown of her marriage. MM got engaged to a Lebanese woman in 2010, but due to his refugee status was unable to visit her in Lebanon. Their plans to marry in Syria in 2012 were also deterred, due to the security situation. The couple met twice in Cyprus on Visitor visas and got married by proxy in Lebanon in January 2013.
The couple made a Spouse visa application, MM stated that he earned approximately £15,600 on average per year, along with his wife having a BSc in nutrition, and employed in Lebanon as a pharmacist. He also confirmed that she was fluent in English and had been in contact with employers in the UK, who indicated that she was likely to find skilled employment if she was lawfully resident in the UK.
Unfortunately, for MM and EF the Immigration Rules were amended on 9 July 2012 to introduce a financial requirement to be met by a person applying for leave to enter, leave to remain and indefinite leave to remain in the UK on the basis of their family life with a person who is:
1. British Citizen; or
2. present and settled in the UK; or
3. in the UK with refugee leave or humanitarian protection.
The rules specify that a sponsor must be earning £18,600 per annum before they can sponsor their spouse, unmarried partner or same sex partner to enter or remain in the UK. When MM’s case was heard at the Administrative Court, Immigration Judge Blake J carefully considered the UK’s immigration rules requiring a minimum income of at least £18,600 for spouse visa applications and stated that they could constitute an unjustified and disproportionate interference with the ability of spouses to live together. He suggested that an appropriate figure may be around £13,400 and highlighted the position of young people and low wage earners caught by the higher figure in the rules.
Decision Made in MM Income Case in Court of Appeal
The verdict was released today. The case was heard in the Court of Appeal in front of Lord Justice Aikens and Lord Justice Treacy. The judges sympathized with the Appellants but stated the UK does not hold the highest threshold when it comes to financial requirements for spouses:
“Essentially the debate is about figures and what should be the minimum necessary income figure and what other possible sources of income should or should not be taken into account to see if that minimum can be reached. This case is not the same as Quila, where the policy imposed a total ban on entry of persons between 18 and 21 who wished to be married to UK citizens; or Baiai where the policy (subject to a discretionary compassionate exception) imposed a “blanket prohibition on the right to marry at all in the specified categories”.162 Here, the non-EEA partner can enter the UK, provided the UK partner’s level of income, judged by the policy of the new MIR to be appropriate, is reached. Admittedly there is a total ban on the entry of non-EEA partners where the UK partner cannot reach the required minimum and I appreciate that this ban could be life-long. But there has always been a maintenance requirement at a certain level and if that level was not reached by the UK partner, then there was a total ban on the entry of the non-EEA partner unless, in an individual case, it would be disproportionate under Article 8(2) to refuse entry in that instance. Moreover, maintenance requirements are not unique to the UK and it does not set the highest minimum annual income; Norway does.”
They continued by considering whether they were in breach of Article 8:
“I have also considered whether your application raises or contains any exceptional circumstances which, consistent with the right to respect for family life contained in Article 8 of the European Convention on Human Rights, might warrant consideration by the Secretary of State of a grant of entry clearance to come to the United Kingdom outside the requirements of the Immigration Rules. I have decided that it does not. Your application for entry clearance to come to the United Kingdom is therefore refused.”
It is expected that the parties will appeal this decision to the Supreme Court, but may have to wait many months before reaching a conclusion.
Are you affected by the ‘Financial Requirement’?
The Home Office’s rules on financial requirements affect non-European Economic Area (non-EEA) nationals applying to enter or remain in the UK under the family migration route. The rules define the basis on which a person can enter or remain in the UK on the basis of their family or private life. If you intend to make an application as the spouse, partner, fiance(e) or proposed civil partner of a British citizen, you and your sponsor will need to meet the financial requirements.
If you would like to discuss how the financial requirement may affect you, please contact us today and our London immigration solicitor’s will be able to assist you by meeting with you and reviewing your case. If you have had a spouse visa refused on the grounds that you did not meet with the financial requirements, contact us so we can review your case.