Supreme Court Declare Family Migration Rules Unlawful for Failing Children but Minimum Income Threshold is Lawful

In the long awaited landmark judgment in the ‘MM Case’, the Supreme Court has declared that the current family migration rules are unlawful.

This, the Court said, is because neither the Immigration Rules not the Home Office Guidance given to decision makers is sufficient to protect the best interests of children.

Unfortunately, the Court did not overturn the £18,600 minimum income threshold required to bring a non-EEA spouse to the UK, despite statistics that 41% of the UK’s working population do not have such a high income.

However, the Court stated that where the income is not met, the Rules or Guidance should be revised to allow for other reliable sources of earnings or finance to be take onto account, such as

• support from other family members; and
• the spouse’s prospective earnings in the UK.

This is not permissible under the current Rules, and would allow a visa to be granted on human rights grounds.

So although frustratingly the Court has upheld the minimum income threshold meaning that a sponsor who does not earn £18,600 cannot bring his spouse to the UK, there is some light at the end of the tunnel for families who have been separated by the Rules.

Going forward and once the Rules are revised, if your salary does not meet the threshold, you should see if you can fill the gap with support from family and friends or try to secure an offer of employment for your spouse.

We will all now have to wait a little longer for the Home Office to revise the Rules and Guidance, after which we will know where we stand.

The full judgment in the MM Case can be read here.

In the meantime, please read these 7 useful tips on how to prevent your spouse visa being refused.

Visadreams.com,  Diary of an Immigration Lawyer, is a blog run by Fahad Ansari, the director and principal solicitor of Riverway Law, a niche UK immigration and nationality law practice based in London.  If you would like any advice or assistance in relation to your immigration matter, please do not hesitate to email me at fahad@riverwaylaw.com or submit your details here.