On 5 July 2013, the High Court handed down its judgment in a Judicial Review of the minimum income threshold for spouses/partners and children applying in the family route in the case of MM and others v SSHD  EWHC 1900 (Admin).
As a result of the judgment, the Home Office has paused decision-making on some spouse/partner and child settlement visa and leave to remain applications to enable us to consider the implications of the judgment.
A Home Office spokesperson said:-
‘Our family changes were brought in to make sure that spouses coming to live in the UK would not become reliant on the taxpayer for financial support and would be able to integrate effectively. We’re pleased that this judgment supports the basis of our approach.
‘We are looking closely at the judgment and its likely impact on the minimum income threshold before we decide how to respond. In the meantime, where an applicant does not meet the minimum income threshold and there is no other reason to refuse it, the application will be put on hold.’
The case of MM concerned three appeals before the High Court challenging the immigrations rules on the basis that they are discriminatory and interferes with the right to a private and family life.
Justice Blake concluded that the immigration rules were not unlawful, however, he did find that the earnings threshold would amount to a disproportionate interference with family life if combined with one of the four other requirements in the rules, for example, the inability to supplement a shortfall in income with savings, unless savings are over £16,000.
Justice Blake said that the court would not strike down the rules, but urged the Secretary of State to adjust them, saying the rules were onerous and unjustified.
This judgment is highly important for family migrants who previously thought they had no prospect of being allowed to live in the UK with their family members as their application is likely to succeed under article 8 of the ECHR where they do not satisfy the financial requirement under the immigration rules.
A further announcement from the Home Office is expected in due course.
In the meantime, British citizens who are unable to meet the strict financial requirements under the immigration rules are bypassing regulations to get their relatives into the UK, using a technicality known as the “Surinder Singh Route”, named after a famous court case. This means that a British citizen can move to another EU country with his or her non EU spouse, work for a period of three months, and then be considered under EU law rather than British law on return to the UK. By so doing the British citizen will be considered to be exercising EU treaty rights (by living and working in another EU state) and therefore their status as an EU citizen takes precedence over their status as a British citizen. The family member of the British citizen would be entitled under EU law to an EEA Family Residence Permit which is usually issued for a period of 5 years. This route should definitely be considered where the British spouse if not earning at least £18,600 per annum or has a substantial amount of savings in the UK.
Manak Solicitors LLP