Court Confirms Minimum Income Requirement for Dependents of Permanent Residents

United Kingdom

The Supreme Court ruled today that the minimum income requirement (MIR) of GBP 18,600 per year introduced in July 2012 for non-European Economic Area nationals seeking leave to enter or remain in the United Kingdomas dependants of British citizens and settled persons is lawful, but that the Immigration Rules do not take into account the best interests of children. This means that going forward, immigration decisions can continue to be based on whether dependants of British citizens and settled persons have met the MIR, although the Immigration Rules will have to be reconsidered as they affect children.

Background

In the case, several appellants appealed a lower tribunal’s decision that disallowed their stay in the United Kingdom, in part due to the fact that they did not meet the MIR. Several appellants with children argued that the lower tribunal's decision did not consider the best interests of the child, which should be the primary factor in an immigration decision that would separate a family.

Income Threshold

The Court explained in its decision that the income threshold was rationally connected to the aim of ensuring that a family does not require welfare benefits in the United Kingdom and has sufficient resources in the United Kingdom. The court regarded such considerations as reasonable in balance with other factors.

Best Interests of Children

However, the Court held that the Immigration Rules as they stand did not take into account the best interests of the child as the primary consideration in the decision regarding whether to separate the family, and that the Rules must therefore be amended in line with established principles.

Alternative Sources of Funding

The Supreme Court also considered whether prospective earnings of the foreign spouse or third party contributions could be taken into account in such cases. While the Court accepted that the current requirements were lawful, it found that such a narrow approach should be revised.

What This Means for Employers and Foreign Nationals

Following this ruling, the MIR will continue to apply.

Upon review of the Rules as ordered by the Court, the Home Office is unlikely to restrict the sources of funding that can be considered in determining whether an applicant meets the MIR. The Rules, however, may be broadened to protect the best interests of the child and to allow applicants to rely on more evidence to demonstrate the MIR is met.

Fragomen will report on the developments of the Rules changes as more information becomes available.

This alert is for informational purposes only. If you have any questions, please contact the global immigration professional with whom you work at Fragomen or send an email to [email protected].

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