27 February 2020

Since July 2012, any British citizen or settled resident earning less than £18,600 a year has not been allowed to live in the UK with their partner from a third country. This monetary sum only increases with each dependant (non-British) child. Who knew there is a price for love?

Momentum in opposition to this minimum income provision came about immediately after its introduction, resulting in them being challenged in court. Sadly, the Supreme Court ultimately upheld the requirement, with suggestions to ensure compatibility with Article 8 of the ECHR – the right to family and private life. These were implemented by the Home Office in 2017 along with the introduction of ‘exceptional circumstances’ provisions, a route involving specified alternative sources of funds for families unable to meet the financial requirement. The figure of £18,600 (higher than the living wage) has however stuck and remains an obstacle for international families.

What is an ‘exceptional circumstance’?

Home Office only considers there to be exceptional circumstances where a refusal on the basis of the financial requirement breaches Article 8 rights or results in ‘unjustifiably harsh consequences’ to the applicant and their family. Examples of such consequences provided in Home Office guidance include where there are serious cultural barriers to relocation overseas. Clearly however the separation of a family for an indefinite period of time is not considered to be harsh enough as a consequence. Ultimately the income threshold must still be met in a prescribed way, with the additional evidential requirements.

The reality of the financial requirement

A report by JCWI in January 2020 found that more than 40% of the British population currently do not earn enough to satisfy the minimum income requirement, and in some regions of the UK this rises to 60%. In addition, low-earning populations, such as women, are disproportionately affected, with 80% of women in part-time work failing to meet the threshold. Surely this is an indication of the need for urgent review and reform?

Research by the Children’s Commissioner published in August 2015 indicated that more than 15,000 children, the majority British citizens, were negatively affected by the changes to the Rules and the separation of their family. Additionally, an inquiry by the APPG on Family Migration found that, conversely to the aim, the financial requirement does not seem to reduce reliance on public funds. In some cases, there was an uptake in welfare benefits from British citizens now facing a single-income household living in the UK to support their families, earn enough to meet the financial requirement, whilst also saving towards the extortionate visa fees for their partners.

There continue to be calls for a review of the minimum income threshold, including by the Children’s Commissioner, the APPG on Migration and JCWI. These tend to emphasise the impact the Rules have on individual British families and children, highlighting that the focus on pure economics ignores many other important factors, such as human relationships and integration into British society. Even from a purely economic perspective, alternative calculations have suggested that rather than benefitting the economy, by not considering the loss of the partner’s economic activity, applications of the financial requirement could cost the UK £850 million over ten years.

In any event, there does appear to be an urgent need for an overdue review of this particular aspect of Appendix FM, to reflect and protect the wishes of tens of thousands of affected and separated British families living in a post-Brexit world.