Spouse and civil partner visas – maintenance rules update

As part of an application for a spouse or civil partner visa, a couple must show that they meet certain income or savings thresholds.*

At their most basic level, the immigration rules require a couple to demonstrate a minimum income of £18,600 (additional increments are added for each dependant child). Applicants who earn less than £18,600 can make good the shortfall from savings but cannot rely on third parties, i.e. family and friends, for assistance. The Government’s aim in introducing this requirement was to ensure that families are able to support themselves without being a burden on the taxpayer. Unfortunately, the rules are rigidly applied so that, if a caseworker cannot tick a particular box, the application falls to be refused even though looking at the individual’s circumstances in the whole, it is clear that there would be “adequate” maintenance and no risk to the public purse.

The financial requirement rules have been contentious since their inception. With the government ignoring a call for an independent review by the All Party Parliamentary Group on Migration, the rules became the subject of a legal challenge in the High Court in July 2013 (AM (Pakistan) v The Secretary of State for the Home Department).

Finding in favour of the appellant families, the court found that while the immigration rules themselves were not unlawful, the £18,600 minimum income threshold for partner visas, in combination with other requirements in the rules, would constitute a disproportionate interference with family life. The fact that the rules disregarded savings below £16,000 and did not account for credible job offers or offers of third party support was highlighted in the judgement of Mr Justice Blake who remarked:

“to set the [maintenance] figure [at £18,600] effectively denies young people and many thousands of low-wage earners in full time employment the ability to be joined by their non-EEA spouses from abroad unless they happen to have wealthy relatives or to have won the lottery.”

The Home Office’s response was to appeal the decision whilst, in the meantime, suspending consideration of applications that would fall for refusal solely for failure to satisfy the financial requirements leaving some couples in limbo for almost a year whilst the case progresses through the Court of Appeal.

At RLegal, we see the impact these pernicious rules have on couples and families on a daily basis. The complexity of the rules and the lack of Home Office discretion is such that one of our first post-July 2012 civil partner visa clients was actually a UK solicitor who had applied by himself but fallen foul of the strict evidential requirements.

Staying within the legal profession, we are presently instructed by another solicitor who has returned to the UK following a lengthy period overseas. She had not worked in the months prior to returning to the UK and so could not rely on a UK job offer to satisfy the rules. She and her husband must wait until she has worked in her job for 6 months before they can apply for her husband’s spouse visa. The unnecessary and unyielding lack of discretion in the immigration rules has so far meant that this particular couple have spent the last four months apart through no wish or fault of their own.

The Home Office’s appeal against the High Court’s decision was heard in March 2014. We can only hope that when the court delivers its decision a degree of common sense will prevail. We will, of course, notify you of the outcome here.

*Satisfying the financial requirement rules is one of the most complicated aspects of obtaining a partner visa, i.e. as a fiancé, proposed civil partner, spouse or civil partner – for a summary of the rules please visit our Spouse and Civil Partner Visa or our Fiance and Proposed Civil Partner Visa pages.

If you require legal assistance, please contact David Robinson or Evan Remedios, specialist UK immigration solicitors, on +44 (0)20 7038 3980, at info@rlegal.com or via our online contact form.