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UNITED KINGDOM: Minimum Salary Requirement

On July 9, 2012, a number of dramatic changes to the Immigration Rules took force. Among the most significant of these amendments were new minimum income requirements for British citizens and settled persons seeking to sponsor a non-EEA partner or child. Under the new rules, only certain sources of income may be relied on to meet the threshold and the UK government will not consider an applicant's previous earnings, present jobs, or future earning capacity. Additionally, unlike in the past, neither applicants nor their sponsors may rely on third party guarantees of financial support.

As a result, it is now impossible for many UK citizens to bring their non-EEA partners and children to the UK. Indeed, a recent report published by the All-Party Parliamentary Group on Migration (a cross-party group of Conservative, Labour, and Liberal Democrat MPs and Peers) estimated that 47% of the UK working population would fail to meet the requirements.

Stranger still, British citizens now face more restrictive rules for sponsoring a partner or child in the UK than EU nationals (who may enter under EU law and avoid the minimum salary requirement). This bizarre result has served to highlight an alternative path for British citizens and their family members known as the "Surinder Singh route."

The Surinder Singh Route

The Surinder Singh route stems from precedent established in R v Immigration Appeal Tribunal and Surinder Singh ex parte Secretary of State for the Home Department, [1992] 3 CMLR 358 ECJ (hereinafter Singh), heard before the European Court of Justice (ECJ). In Singh, Surinder Singh, an Indian national, and his wife, a British citizen, worked in Germany for a number of years. The couple returned to the UK, with Mr. Singh entering as the husband of a British national. Following their return, the couple divorced, leading the UK government to seek Mr. Singh’s removal. Mr. Singh challenged the order and the matter was referred to the ECJ to determine whether Mr. Singh had a right to remain under EU law.

The court held that because Mr. Singh's wife had exercised her right of free movement within the EU, he, as her spouse at the time, had a right under European law to enter and remain in the UK. Specifically, the court stated: "The spouse must enjoy at least the same rights as would be granted to him or her under Community law if his or her spouse entered and resided in the territory of another Member State."

Accordingly, a UK citizen exercising his or her right of free movement by working in a Member State for at least three months may return to the UK with his or her spouse under EU law, thus permitting the non-EEA spouse to enter as the spouse of an EEA citizen and avoiding the UK's minimum salary requirement. See HERE.

While the Surinder Singh route has been criticized by some as a loophole, it is not. Rather, it is the state of EU law, and therefore simply a different avenue. As such, a number of families faced with separation have availed themselves of the option.
Even so, the minimum salary requirements may not be an issue for long. The rule has already been challenged and it appears that it is only a matter of time before it will be struck down or amended.

MM, Javed and Majid v Secretary of State for the Home Department

Nearly a year to the day after it was introduced, the High Court in Birmingham handed down a judgment addressing legal challenges to the minimum income threshold.

In MM, Javed and Majid v Secretary of State for the Home Department [2013] EWHC 1900 (Admin), three claimants (two British citizens and one Lebanese refugee) sought to quash the minimum salary requirements. As articulated by Mr. Justice Blake, the central issue of the case was "whether the minimum income provisions of the maintenance rules when applied to sponsors who are British citizens or refugees whose incomes and savings combined do not meet them are a disproportionate interference with the right to respect for family life."

In arriving at its decision, the court considered the effect of the income requirement when combined with additional associated conditions, including:

  1. the prohibition on the use of savings to enhance a shortfall in income unless the savings amount to more than £16,000;
  2. the use of a 30-month period for income projection instead of 12 months;
  3. the prohibition on the use of third party funds to supplement maintenance; and
  4. the prohibition on the use of the future earning capacity of the spouse.

While the High Court held that the minimum income requirement was not unlawful on the basis of discrimination or due to any discord with the doctrine of the best interests of a child, it concluded that, when viewed alongside one or more of the above conditions, the aggregate effects were "so excessive in impact as to be beyond a reasonable means of giving effect to the legitimate aim."

The Court declined to quash the rules, instead leaving it to the Secretary of State to decide what amendments would be needed to satisfy the requirements of proportionality.
This decision offers some hope to families affected by the July 9, 2012, changes and, for the time being, seems to have put the minimum income requirements on hold. After the judgment was handed down, the Home Office issued a statement that it had paused decisions on related spouse/partner and child settlement applications to consider the holding and that a further announcement was forthcoming. See HERE.

It is unclear whether the government will appeal the High Court’s decision. What is clear, however, is that the pitch of the government’s policies appear to be tuned more to the frequencies of political rhetoric than positive reform. Unfortunately, this short-term view, driven by outputs rather than outcomes, promises to continue to create a hostile environment for both valuable migrants and UK citizens.

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