4,000 applications where the gross annual income requirement had not been met for family migration had been put on hold by the Home Office until recently, pending the outcome of MM v Secretary of State for the Home Department [2014] EWCA Civ 985. In July, the Court of Appeal delivered its judgment in this case and upheld the controversial gross annual income requirement set out in the family migration rules introduced on 9 July 2012.  The Court of Appeal decided that the rules did not breach Article 8 of the European Convention on Human Rights, the right to private and family life.

Following the outcome of this case, the Home Office has announced that these 4,000 families will now receive a decision and that they stand to be refused, which is likely to be a significant blow to many families, who may have put their lives on hold for this without a resolution now.

The rules set an income threshold of £18,600 that must be met for a British or settled person to sponsor a partner to come to the UK and additional sums are required where there are non-EEA children in the family.  Furthermore, the rules define what income will and will not be taken into account and specify what documents must be provided.

As explained in Katie Newbury’s blog last year, “Couples torn apart by UK family migration rules”, the rules lead to counter-intuitive situations. For example, a British citizen with unserviceable debts, but an annual salary of £18,600 is in a better position than a family wishing to return to the United Kingdom where the British partner is a stay-at-home mum and the non-British partner has a job offer in the UK with a starting salary of £50,000.

What options are now left for families caught out by the rules?

The starting position for families caught out by the rules is to ensure that they can meet the gross annual income requirement as exemptions from the gross annual income test applies only in very limited circumstances. British citizens wishing to move back to the UK with their families should therefore check their position well in advance of the planned moving date. 

The options for families who do not meet the requirement are fairly limited.  However, in some situations families may still be able to live in the UK if they plan carefully. Options to consider include:

  • Whether the rules can be met through showing savings – the rules do permit families to rely on savings where they cannot meet the rules through income.  Where a couple has no qualifying income, the general rule is that they must have savings of £62,500, which must have been held for 6 months prior to the date of the application.
  • Whether the family can meet the rules at a later date – in some cases, it may be possible for a couple to put themselves into a position so that they qualify in the future. For example, a couple with savings may be able to wait until they have held them for the requisite time or where the British partner is in employment in the United Kingdom it may be that the income will meet the requirement after the partner has worked for six months.
  • Whether the partner can be granted leave in another category and later switch to leave under the rules – where the rules cannot be met, families should consider whether a partner can qualify for leave in another category. For example, while third party support is not accepted for the purposes of the gross annual income requirement, funds from a parent can be used to meet the maintenance requirement for a Tier 4 student wishing to attend university in the United Kingdom.  Some partners may also find that they can be sponsored by a UK employer and granted leave under Tier 2. They may be able to switch to the family route once in the United Kingdom.
  • Whether the family can benefit from European law – while the European law free movement provisions do not generally apply to the family members of British citizens, they do apply where a British citizen has been “exercising Treaty rights” in another EEA state and then seeks to return to the UK with his spouse, who was living with him in the EEA state.  No gross annual income requirement applies in such a case. However, this option will only be available in limited circumstances as, amongst other things, the “centre of the British citizen’s life” must have transferred to the EEA state before the family seeks to return.  The Court of Justice for the European Union has also held that a period of residence of at least three months is required.