Just a couple of weeks after announcing, seemingly without any apparent consultation or forethought, that the minimum income requirement (MIR) for spouse visa applications would increase from £18,600 to £38,700, the Home Office has changed its mind and may increase this initially to only £29,000.
As it seems the threshold for the MIR is still open for debate (or rather subject to change with every unfavourable newspaper headline), I thought now was a good opportunity to give some thoughts on the MIR.
The minimum income requirement applies to visa applications for the spouse, fiancé and unmarried partners of British citizens and those settled in the UK, as well as the partners of some additional migrants with limited leave, such as refugees and those with humanitarian protection, as well now as EEA nationals who have been living in the UK since before Brexit. The MIR was introduced in July 2012 with the introduction into the Immigration Rules of Appendix FM and heralded the start of the current Home Office approach to abandon the long-standing use of numbered legislation with a variety of confusing letters and numbers (and setting the scene for the truly incomprehensible Appendix EU!). Prior to 2012, the Home Office approach was a more nuanced and flexible financial test, requiring applicants to show they had sufficient funds to maintain and accommodate themselves and their dependents in the UK without recourse to public funds (to which they would not be entitled on a spouse visa, in any event), a financial test still used for parent and adult dependent relative visa applications, as well as for those with UK partners receiving disability-related benefits.
Since 2012, we at Wesley Gryk LLP have been at the forefront of advising couples and families on the MIR and its accompanying Rules; as well as training the trainers (other lawyers and advisers). One of the key points I explain to clients and other advisers when discussing the financial requirements is not to try to make sense of them – Appendices FM and FMSE set out a very prescriptive set of rules and requirements not only for the level of income itself, but also the sources and evidence that can be used to demonstrate the requirement is met. Some of the logic in these Rules is hard to find, and it is not uncommon to come across millionaires who fail to meet them (because their money is tied up investments rather than sitting in the bank, or because the high-earner in the family is the applicant themselves overseas and this cannot be relied upon), while others can meet the requirement despite not actually being able to support themselves (for example, the applicant landlord whose rental income is £18,600 but in reality is paying out more than this in their buy-to-let mortgage payments). As a mantra I often repeat, it’s not about showing how much money you have, but rather about complying with the often bizarre set of Rules and requirements to satisfy the decision-maker.
The lawfulness of minimum income requirement itself has already been subject to legal challenge in the case of MM & Otrs which culminated in a Supreme Court judgment in 2017. Although the MIR was considered to be overly prescriptive, inflexible and disproportionately affected women, certain ethnic groups, regions and age-groups, the Supreme Court did find it acceptable in principle (with some caveats about the best interests of relevant children being sufficiently taken into account). Given the Home Office already won this battle, why create a new one now by raising the figure so disproportionately? The Home Office is correct that the £18,600 figure has not changed since 2012, but it has proposed an increase to £38,700 (which might now come in stages). This is a 108% increase.
Neither the cost of living nor people’s income has risen this much since 2012. In 2012, the average median earnings for full-time employees in the UK was £26,472. It is now £34,963. This is a 32% increase. According to the Bank of England CPI inflation calculator, £18,600 in 2012 would only be £25,636 now. This is a 38% increase. So how can a 108% increase possibly be justified?
So instead of pushing ahead with an increase in the MIR that is unjustifiably high, perhaps the Home Office and its Ministers could take a bit more time to think this through and adjust to a figure that corresponds more accurately to have people’s incomes and salaries have changed in the 10 years since 2012. This could save much heartache for families and also much litigation for the Home Office.
And if change is on the cards, then this should also be the opportunity to add in more flexibility to the MIR Rules so they better reflect the ability of applicants and their families to support themselves. If the high earner in the family is the applicant themselves (rather than their British spouse) then the family should be able to rely on the applicant’s employment/self-employment income and/or job offer in the UK to satisfy the MIR. If savings are held in stocks, shares or other investments in a regulated financial institution, then families should be able to rely on these without suffering a financial penalty to cash them in. If applicants or their partners are newly self-employed but can show regular income, they should not have to wait until after the financial year ends to apply. Applicants with children should not be made to suffer family separation of up to six months or longer in order to show sufficient length of employment. These are just a few suggestions of how the MIR could be proportionately increased while at the same time being revised to ensure they operate in a fair and just manner that allows applicants and their partners to demonstrate how they can support themselves living in the UK.
Please feel free to contact us should you want advice regarding your family’s eligibility for a UK visa.