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UNITED KINGDOM: Commentary: Minimum Salary Requirement Challenged

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. (This section was previously published in The Law Society Gazette and reprinted with their permission. Minor edits have been made.)

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 Justice Blake, the central issue 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."

The court considered the effect of the income requirement when combined with additional associated conditions, including:

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

It is unclear whether the government will appeal. 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, which is not informed by outcomes, promises to continue to create a hostile environment for both valuable migrants and UK citizens alike.

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