UK Appeal Court dismiss £18,600 legal challenge

[theoldgit]

One post removed, I know this is an emotive issue, but this isn't the place for vulgar comments.

Please feel free to repost the jist of your argument without those sort of remarks.

[7by7]

<snip>

Those with Thai partners are a very small proportion of a much bigger picture.

Indeed; but the same rules apply to all; as they should.

You seem to think that certain nationalities (or from your posts in every topic where this has been discussed, one particular nationality) should find it harder than others to obtain UK settlement visas.

Shame on you.

No I do not think that at all but we need a fair system.

Yes, we do need a fair system; which this isn't as it sets an arbitrary figure of gross income which takes no account on the ability of sponsor and applicant to actually support themselves.

"Thai people adapt well and integrate in to wherever they settle. They also are happy to take a job and pay taxes."

A generalisation at best; I know several Thai spouses who have never worked since coming to the UK.

"Other nationalities are not so inclined"

Which nationalities would that be, then?

Not Indian or Pakistani when you consider the number of professionals, entrepreneurs and small business owners there are in the UK from both countries. Many of whom provide employment for the indigenous population.

"A lot of immigration law has been fine tuned to make sure that spouses are not prisoners in their home or community as has been the case in the past"

Indeed; a prime example of this being KOLL, which I support. But how does this arbitrary set minimum income requirement effect that issue?

"On this forum we are just concerned with our relationship with Thailand but the UK government has addressed feedback from the general population regarding who is admitted."

No it hasn't.

The general population's main concerns over immigration are the numbers coming from the EEA, especially the newer, East European nations, and asylum seekers. This requirement only applies to family migrants, who in 2011 accounted for just 13.1% of all immigrants (source) and so does nothing to address those concerns.

Unfortunately, the general population lump all immigrants together; so the government can use this measure to say that they are doing something to reduce immigration.

Even though the effect on total immigration from all sources is minimal, the effect on British citizens and their non EEA national families can be disastrous.

"As I have said before it is nigh impossible for any of us to ever be settled with rights in Thailand and we are all at the mercy of the Thai visa system hence this website."

Irrelevant, we are discussing UK immigration law, not Thai.

However, two wrongs do not make a right.

[Pattszero]

The bottom line is that there is now clarity in the system. £18,600 is the figure and that's it.

Iancnx would need to travel back, get employment, then bring his wife over.

For all you moaning about the prior system - that was always left to the discretion of the officer.

I'd rather have the certainty of knowing that I had qualified.

Than leave it to the discretion of anyone.

[7by7]

It was in theory left to the discretion of the ECO; but in practice there was a guideline figure set out in the Entry Clearance Guidance of the time.

Basically, a previous court ruling had determined that it would be inappropriate for an immigrant family to have less to live on after housing costs than the income support level for a British family of the same size; currently £112.55 per week (£5852.60 p.a.) for a couple.

So, prior to 9/7/12, the unofficial income required was this amount plus housing costs.

I see no reason why this unofficial minimum could not have been made official.

In addition, as previously said, under the old rules it was net income, after tax, NIC and all regular outgoings, which was assessed.

Now it is gross income; taking no account of any outgoings at all.

Edited July 12, 2014 by 7by7

[Pattszero]

It's no longer discretionary - I think that's a plus.

[7by7]

As I said above; in theory it was discretionary, in practice it wasn't.

What do you think about the actual figure?

Do you think having a minimum required income which is above the earned income of 40% of the working population of the UK is a plus?

Do you think that taking no account of regional variations in income and living costs is a plus?

Do you think using gross rather than net income (see above for examples of how daft this is) is a plus?

[Basil B]

First I heard of this. My eighteen month son has a British passport and Thai mother. We are happily married and live in Thailand. My British armed forces pension income is less than £18k. Does this ruling mean I could return to UK with my baby son, but his mother would be refused? Surely that cannot be the case?

I could easily get a job (53 yrs old) and earn more than enough but that's not the point!

You could make up the shortfall by demonstrating savings, firstly, you must have £16,000 plus 2.5 times the shortfall so just assume you are receiving £15,000 PA you will have a shortfall of £3,600 so multiply this by 2.5 = £9,000, then add £16,000 = £25,000, for an income of £18,000 it would be £16,000+£1,500=£17,500.

The financial (minimum income) requirement for partner visas

http://www.thaivisa.com/forum/topic/689377-the-financial-minimum-income-requirement-for-partner-visas-for-uk/ look for the PDF in post#1

Edited July 12, 2014 by Basil B

[marstons]

So in a nutshell, I could have a pension of £19,000 before tax, nowhere to live in the UK so I would need to rent somewhere at maybe £9,000 per year, leaving me with about £690 a month, after paying tax and rent, to live on, and my wife would get a settlement visa.

Mr Bloggs has a pension of £18,000 before tax, but has a mortgage free home in the UK, so he has about £1,375 a month after tax to live on, roughly double mine, and his wife wouldn't get a settlement visa.

Yep, seems very sensible to me

Sorry I just do not understand the above as it just proves some of the flawed logic of Ms May's lets lock the doors policy, was the last line sarcasm?

In all fairness the current policy takes no account of the applicants or their returning spouses employment prospects and probable earnings.

Sorry for the sarcasm in this serious topic Basil B, I was indeed attempting to point out the stupidity of the flawed logic of Ms May's thinking in my own clumsy way.

As for the apparent drive for her to be the next Tory leader, well no wonder they are trying to persuade Boris to throw his hat in the ring.

would you sooner have her as PM or in her present role?

[mattk1]

The thing that really annoys me about these new rules is that you are not allowed to have family help out.

My mum and dad would be more than wiling to help support me and my young family in their premises but this would not be taken into consideration.

Why not just make us sign something that says 'right ok you can come over but don't expect any benefits or free healthcare'. I'd be fine with that!

[Jay Sata]

The thing that really annoys me about these new rules is that you are not allowed to have family help out.

My mum and dad would be more than wiling to help support me and my young family in their premises but this would not be taken into consideration.

Why not just make us sign something that says 'right ok you can come over but don't expect any benefits or free healthcare'. I'd be fine with that!

That could be done through a provisional entry visa whereby your spouse could enter subject to her getting work to bump the numbers through the £18600 barrier

[7by7]

The financial (minimum income) requirement for partner visas

http://www.thaivisa.com/forum/topic/689377-the-financial-minimum-income-requirement-for-partner-visas-for-uk/ look for the PDF in post#1

With respect, Basil, that's more of a briefing note.

For the full requirement and ways of meeting it, including the evidence required, see:-

Immigration Directorate Instructions

Family Members under Appendix FM and Appendix Armed Forces of the Immigration Rules

Annex FM Section FM 1.7: Financial Requirement

[Jay Sata]

The subjects of the appeal were more complicated than the sort of spouse visas being discussed on this site.

I am sure there is some latitude if the applicant is in work but just a few numbers short of the barrier.

[7by7]

No, there isn't any latitude.

From the financial appendix linked to above

3.2.1. Decision-makers cannot exercise any discretion or flexibility with regard to the level of the financial requirement that must be met. It is a matter of public policy to operate a financial requirement based on a minimum income threshold for the sponsorship of partners and children. It must be clear and consistently applied in all cases.

[Jay Sata]

I guess that is a clause to prevent any appeals on the grounds of officer bias?

[naboo]

First I heard of this. My eighteen month son has a British passport and Thai mother. We are happily married and live in Thailand. My British armed forces pension income is less than £18k. Does this ruling mean I could return to UK with my baby son, but his mother would be refused? Surely that cannot be the case?

I could easily get a job (53 yrs old) and earn more than enough but that's not the point!

You can divorce her, get custody of your son, then she applies for a visa on humanitarian reasons to be with the son, don't need the £18k then.

[Donutz]

What silly rules, personally I would support EU (2004/38/EC) rules to be applied for all including EU citizens in their own country. Aslong as you are not a unreasonable burden on the state (wellfare) the foreign partner is welcome. You are not harming anyone and you just want to be togeher, no harm in that you'd think.

If that would not work in practice, an income equal to that of minimum wage or benefits should be sufficient. If the government says X GBP is sufficient to live on for your average citizen, this should be sufficient, not? Ban access to wellfare for say 5 years and there is little risk of people immigrating and then soon after "leeching of the wellfare state".

But if the UK is anything like NL the general public and (populist) parties want to be "though on immigrations" as if all immigrants are the same (job stealing wellfare leeches who beat and oppress the wife and kids while at it..). The media, atleast in NL, is doing a piss poor job, not even bothering to explain the different types of immigration let alone other statistics such as how many people actual get a permit (at best the mention the number of applications) or what profiles these people have to kinda show what the effects are on the state, economy, neighbourhood etc.

[Jay Sata]

Interesting you mention Holland as they insist on double the minimum wage.

This is not a level playing field and also there are issues we can not discuss on here.

[Thai at Heart]

For the benefit of members who have not taken part in discussions on this before, let me explain something.

Prior to 9/7/12 the ECO would look at the applicant and sponsor's income and savings and all of their regular outgoings, rent/mortgage, debt repayments etc., before deciding if they had enough left to support themselves with.

Now, if the sponsor earns £18,600 p.a. (plus any extra for children also applying) or has the necessary amount of cash savings or combination of income and savings; they meet the requirement.

Regardless of their regular outgoings!

This means that a sponsor with an income of £18,600 p.a. and with regular outgoings of £10,000 p.a., leaving £8,600 p.a. for the couple to live on, qualifies.

But a sponsor with an income of £18,500 p.a. and regular outgoings of £5,000 p.a. leaving £13,500 p.a. for the couple to live on doesn't qualify!

How is that fair, reasonable and logical?

In addition, prior to 9/7/12 the applicant's employment prospects once in the UK would be considered; especially if they had a firm job offer.

Now, even if the applicant has a firm job offer paying above the minimum income required, this is ignored.

How is that fair, reasonable and logical?

It is a ridiculous arbitrary measure.

[Somtamme]

Agree it is ridiculous, as Lord Justice Aikens, one of the three appeal court judges, came to the conclusion not to challenge the Secretary of State's policy tool (the income/savings criteria) on the basis seemingly of evidence put before the court (risk of that partners and children becoming a burden on the benefits system) This decision is not surprising, and probably remit of more appropriate body (Home Affairs Committee) or to wait for change in Govt.

As background it is currently the Home Office's policy (Statement of Intent: Family Migration) to introduce the income tool because it 'reflects the Government’s and Parliament’s view of how, as a matter of public policy, the balance should be struck between the right to respect for private and family life and the public interest in safeguarding the economic well-being of the UK'.

So to decide whether this tool is fit for purpose, the test is whether it would indeed pass these tests for a private and family life and one which safe-guards the economy. The flaw with this policy however, lies in the fact that merely being in receipt of the minimum income does not mean there will not be some who would place undue burden on this benefits system.

This is because access to benefits is unlike a pension or private health care, in that it is a right not privilege. In my view the whole Govt policy of fixed fees for visas and this income policy tool needs to be scrapped before the public interest tests can be satisfied.

As a start visas need to be replaced by visa fees calculated based simply on the officer time and complexity to process them up to maximums prescribed by legislation. There is no duty to charge the current fees as The Act (Immigration, Asylum and Nationality Act 2006) is purely discretionary. With discretionary powers means more care needs to be applied to ensure the visas fees only recover what is reasonably incurred.

And secondly, settlement then should only be granted on condition that access to certain benefits is on a time weighted basis with Director for Public Health helping to decide the program of conditional access. By making settlement as conditional, would reward good behaviour and recognise the wider family involvement. Before families therefore choose to move back to UK, it would be realised at the outset of the need to have relevant private cover for the partner and/or children where state benefits cannot be relied upon. Any policy should be progressive, but what we have in place is one which is simplistic in the extreme.

[Jay Sata]

Agreed there is scope for fine tuning but politics and public opinion on immigration play a role in this legislation.

[Somtamme]

The Appeal judges were obviously unhappy at Blake J's approach and have ruled that, irrespective of the anomalies apparent in May's nasty piece of work, the minimum criteria were introduced rationally and with due consideration of their impact upon other rights. Not for judges to usurp the elected legislature and the executive's right to implement their laws according to government policy.

But whilst the appeal judges considered this income policy tool to have been introduced rationally, it cannot be said they reached their decision with due consideration or due diligence to long-term impacts on the benefits system. Merely being in receipt of income in excess of the threshold will not mean after settlement, a potential detrimental impact on benefits. The only way of assessing this properly was to commission research into impacts on benefits after settlement.

[7by7]

<snip>

I am sure there is some latitude if the applicant is in work but just a few numbers short of the barrier.

No, there isn't any latitude.

From the financial appendix linked to above

3.2.1. Decision-makers cannot exercise any discretion or flexibility with regard to the level of the financial requirement that must be met. It is a matter of public policy to operate a financial requirement based on a minimum income threshold for the sponsorship of partners and children. It must be clear and consistently applied in all cases.

I guess that is a clause to prevent any appeals on the grounds of officer bias?

I doubt it as the ECO still has discretion in other areas, judging if it is a genuine relationship for example.

But, even were it so your original assertion is incorrect.

Sponsor has an income of £18,600; requirement met.

Sponsor has an income of £18,599.99; requirement not met (unless it can be met by savings).

[7by7]

Something many have either forgotten or not realised is that this financial requirement has to be met three times:

• the initial visa application,
• FLR application after 30 months in the UK,
• ILR application after 5 years in the UK.

Although for the FLR and ILR applications the applicant's income, if any, can also be used and for ILR the first £16,000 of savings, if any, can also be used..

The government have reserved the right to raise these levels, although they have yet to do so. If they do then, based upon rises in other government fees, including visa and LTR fees, it will probably be by inflation.

A large percentage of the population are unable to have any certainty about what they will be earning in 2.5, let alone 5 years time. Many, like myself, have seen their incomes reduce in real terms over the last 5 years plus.

What I would like to know is what would happen to a couple who, for example, could meet the requirement at the first stage, but are unable to do so at the second or third.

A not unlikely prospect, I feel. The wife may be not working due to young children; the husband's income may not rise fast enough, or he may even be made redundant.

I asked my MP this, but as I was not personally in that position and so making a general enquiry he referred me to the Home Office.

The Home Office replied with a simple restatement of the requirements!

[7by7]

The Appeal judges were obviously unhappy at Blake J's approach and have ruled that, irrespective of the anomalies apparent in May's nasty piece of work, the minimum criteria were introduced rationally and with due consideration of their impact upon other rights. Not for judges to usurp the elected legislature and the executive's right to implement their laws according to government policy.

But whilst the appeal judges considered this income policy tool to have been introduced rationally, it cannot be said they reached their decision with due consideration or due diligence to long-term impacts on the benefits system. Merely being in receipt of income in excess of the threshold will not mean after settlement, a potential detrimental impact on benefits. The only way of assessing this properly was to commission research into impacts on benefits after settlement.

This income requirement has very little effect on the benefits system.

The prohibition on public funds which existed prior to 9/7/12 still exists in the same form as before.

The only about it which has changed is that as it now takes 5 years to obtain ILR rather than 2, it is now 5 years before this prohibition is lifted, not 2.

Something with which I have no problems.

Furthermore, if the sponsor is in receipt of certain public funds, then they do not have to meet this requirement; they merely have to show that they can support their immigrant family member(s) without claiming any extra. See 3.6. Meeting the financial requirement through “adequate maintenance”

[Somtamme]

The Appeal judges were obviously unhappy at Blake J's approach and have ruled that, irrespective of the anomalies apparent in May's nasty piece of work, the minimum criteria were introduced rationally and with due consideration of their impact upon other rights. Not for judges to usurp the elected legislature and the executive's right to implement their laws according to government policy.

But whilst the appeal judges considered this income policy tool to have been introduced rationally, it cannot be said they reached their decision with due consideration or due diligence to long-term impacts on the benefits system. Merely being in receipt of income in excess of the threshold will not mean after settlement, a potential detrimental impact on benefits. The only way of assessing this properly was to commission research into impacts on benefits after settlement.

This income requirement has very little effect on the benefits system.

The prohibition on public funds which existed prior to 9/7/12 still exists in the same form as before.

The only about it which has changed is that as it now takes 5 years to obtain ILR rather than 2, it is now 5 years before this prohibition is lifted, not 2.

Something with which I have no problems.

Furthermore, if the sponsor is in receipt of certain public funds, then they do not have to meet this requirement; they merely have to show that they can support their immigrant family member(s) without claiming any extra. See 3.6. Meeting the financial requirement through “adequate maintenance”

My point is the impact on benefits post settlement

[Richard W]

Its more if the three of you go back, 18k is for wfey, there is more for the kid.

That's not correct, the qualifying figure isn't increased in respect of a child holding a British Passport, only if the child hold a foreign passport.

I believe you meant, "That's not correct, the qualifying figure isn't increased in respect of a child holding a British Passport, only if the child only holds a foreign passport."

To be pedantic, a certificate of right of abode in the UK will also suffice; British citizens are not entitled to British passports - 'a passport is a privilege, not a right'.

[Basil B]

There is no entitlement to a passport and no statutory right to have access to a passport. The decision to issue, withdraw, or refuse a British passport is at the discretion of the Secretary of State for the Home Department (the Home Secretary) under the Royal Prerogative.

https://www.gov.uk/government/speeches/the-issuing-withdrawal-or-refusal-of-passports

​Does that mean the Ms May personally considers each passport application?

Edited July 13, 2014 by Basil B

[PeeJay1959]

Maybe that's why the have such a back-log, LOL

[7by7]

The Appeal judges were obviously unhappy at Blake J's approach and have ruled that, irrespective of the anomalies apparent in May's nasty piece of work, the minimum criteria were introduced rationally and with due consideration of their impact upon other rights. Not for judges to usurp the elected legislature and the executive's right to implement their laws according to government policy.

But whilst the appeal judges considered this income policy tool to have been introduced rationally, it cannot be said they reached their decision with due consideration or due diligence to long-term impacts on the benefits system. Merely being in receipt of income in excess of the threshold will not mean after settlement, a potential detrimental impact on benefits. The only way of assessing this properly was to commission research into impacts on benefits after settlement.

This income requirement has very little effect on the benefits system.

The prohibition on public funds which existed prior to 9/7/12 still exists in the same form as before.

The only about it which has changed is that as it now takes 5 years to obtain ILR rather than 2, it is now 5 years before this prohibition is lifted, not 2.

Something with which I have no problems.

Furthermore, if the sponsor is in receipt of certain public funds, then they do not have to meet this requirement; they merely have to show that they can support their immigrant family member(s) without claiming any extra. See 3.6. Meeting the financial requirement through “adequate maintenance”

My point is the impact on benefits post settlement

Yes, I know; but, as I said, this income requirement has effect on that.

Once someone has settlement (ILR) then they are able to claim any and all benefits; just as before. Provided they meet the requirements for same, of course.

The only difference is that it now takes 5 years to obtain ILR, not 2.

Requiring an arbitrary minimum income level for sponsors has not changed that.

[Thai at Heart]

<snip>

I am sure there is some latitude if the applicant is in work but just a few numbers short of the barrier.

No, there isn't any latitude.

From the financial appendix linked to above

3.2.1. Decision-makers cannot exercise any discretion or flexibility with regard to the level of the financial requirement that must be met. It is a matter of public policy to operate a financial requirement based on a minimum income threshold for the sponsorship of partners and children. It must be clear and consistently applied in all cases.

I guess that is a clause to prevent any appeals on the grounds of officer bias?

I doubt it as the ECO still has discretion in other areas, judging if it is a genuine relationship for example.

But, even were it so your original assertion is incorrect.

Sponsor has an income of £18,600; requirement met.

Sponsor has an income of £18,599.99; requirement not met (unless it can be met by savings).

Is 18,600 quid supposed to in some way reflect a wage on which a man can support a wife without her working?

Where pray tell is this person supposed to live because he surely isn't likely to be funding a mortgage on this level. I object to the measure because it reflects nothing to do with the reality of being able to support a family and that in the interim family support is not counted.