Financial Requirements of Spousal Visas Still Dividing Families

By Teni Shahiean of OTS Solicitors

The draconian financial requirements applicants must meet when applying for a spouse visa are still tearing families apart and causing untold stress on individuals. As recently as January this year, an English businessman complained to the media that his Panamanian wife was being forced to leave the country and their child for an indefinite period of time because, despite earning around £36,000.00 per annum, they had not supplied ‘enough evidence’ for the Home Office to approve the visa. The family felt compelled to go to the media because the Home Office never informed them exactly what the additional evidence they required to grant the visa.

However, not every story makes it into the newspapers, and many couples are coping with the stress and strain of not only meeting the spouse visa requirements, but providing adequate evidence to the Home Office that they have done so.

The spouse visa Requirements Under the Immigration Rules

In the UK, spouse visa applications will be considered under the rules set out under Appendix FM of the Immigration Rules.

To be successful in acquiring a spouse visa, the applicant must provide evidence that:

• They are legally married or are in a civil partnership with a British citizen and plan to live together in the UK;
• They have adequate accommodation provided for without public funds;
• They meet the English language requirements; and
• The spouse sponsoring the applicant meets the minimum income requirement of £18,600.00 (gross) per annum. If children from the marriage are to be sponsored the income requirement rises to £22,400.00 for one child and an additional £2,400.00 for each additional child.

The Home Office will take savings into account, however, and this is the cruncher for many applicants; any shortfall from the income threshold must be multiplied by 2.5 and added to the sum of £16,000.00.

An example of this is as follows:

If A, who holds British Citizenship (or is settled in the UK), has an annual gross income of £14,000, and wishes to sponsor his or her spouse B, a shortfall of £4,600 multiplied by 2.5 (£11,500) must be added to the ‘base’ amount of £16,000. Therefore, the couple would need to provide evidence of savings of a total of £27,600 to obtain a Spousal Visa.

It is important to note that research conducted shortly after the new rules were introduced showed that 47% of British Citizens would be unable to sponsor a non-EEA spouse under the current requirements.

The courts Response to the Income Requirements

The high court stated that while the income requirements contained in Appendix FM are not unlawful but are "onerous... and unjustified", when a challenge was brought in 2013, with applicants claiming that the new rules were discriminatory and breached Article 8 (the right to private and family life) of the European Convention on Human Rights. Mr Justice Blake suggested in his judgement that a threshold should be reduced to around £13,000.00.

However, the Court of Appeal upheld the Governments appeal in 2014, with Lord Justice Aitkens stating that the high court judgment was incorrect. He also added: "In my judgment it is not the court's job to impose its own view unless, objectively judged, the levels chosen are to be characterised as irrational, or inherently unjust or inherently unfair. In my view, they cannot be."

In Summary

For now, it appears the income requirement needed to obtain a spouse visa are here to stay and with the constant pressure on the government to continue to curb Immigration, from both inside and outside the EEA, the level of income demanded of the sponsor is likely to increase over time rather than decrease. However, there is a way to circumvent the income requirement and bring a spouse or civil partner into the UK. It is called the Surinder Singh Route, and we will be discussing this in detail in next week’s post.

If you require any legal advice regarding a spouse visa or a spouse visa Appeal, please phone our London office on 0207 936 9960 to make an appointment with one of our Immigration specialists.

If you have any thoughts on this blog, please feel free to write them in the comments section below.