If you want your foreign spouse to live with you in the UK, you better have a high-paying job
The Supreme Court has ruled today that the controversial “anti-love law”, which bars non-European Economic Area (EEA) citizens from living here with their low-earning UK spouses, is in principle lawful.
Since 2012 and under domestic law, UK nationals are allowed to bring their foreign spouses into the country to live with them, but only if they (the UK citizen) earn £18,600 a year or more. The minimum income requirement steadily increases if there are dependent children involved.
It has been estimated that 45% of people do not earn £18,600, with the average wages of chefs, florists, hairdressers and hospital porters, for example, coming in well below this requisite minimum figure. Lord Carnwath told the court this morning that imposing a minimum income requirement like this is, “in principle”, lawful and does not breach the European Convention on Human Rights (ECHR).
The lead claimant, MM, had argued that the law infringes article 8 of the ECHR, i.e. the right to family life. Campaigners have said up to 15,000 British children have grown up as “Skype kids” — having to keep in contact with one of their parents online — since the rule was introduced. While it’s undeniable this law has had a devastating impact on the family life of the people it affects, the court said today that just because the rules cause hardship does not mean they are unlawful.
Manjit Singh Gill QC from No5 Chambers, acting for MM, also said the requirement was unlawfully discriminatory and irrational.
For starters, the rule — termed the “anti-love law” by the Refugee Council — does not take regional or gender-driven wage differences into account. The percentage of women not eligible to sponsor a third country national partner is nearly twice as high as the number of men, while figures fluctuate between 30% and 51% dependent on where in the country the partner lives.
Campaigners have also taken issue with the fact that it is only the UK national’s income that is taken into account. This means that if a millionaire businesswoman married an English cleaner (in receipt of an average salary) then she wouldn’t be allowed in, regardless of the contribution her wealth would make to the economy.
The case was heard in the Westminster-based court almost a year ago to the day. Speaking at the February 2016 hearing before Lady Hale and Lords Kerr, Wilson, Reed, Carnwath, Hughes and Hodge, barrister Gill — who also appeared before the Supreme Court in the Brexit legal challenge — said:
For many, £18,600 is completely unachievable. It is not like the case of the English language test where you can put in so many hours. This is effective for life, for half the British population. Parliament cannot have intended the law to be used in that way.
In court this morning were Lady Hale, Lord Carnwath and Lord Hodge. Deputy president Hale began by saying the court regrets it’s taken us longer than usual to give judgment in this case, especially because the minimum income rules have caused a “great deal of concern”.
Carnwath then announced that a requirement like that in question “has a legitimate aim of ensuring couples don’t have recourse to welfare benefits”. The income threshold chosen was rationally connected to this aim.
However, Carnwath then said that the Supreme Court unanimously allows the appeals to a limited extent. He explained that the rules and instructions in relation to the minimum income requirement do not take proper account of the Secretary of State’s “s55 duty”.
This duty is contained in the Borders, Citizenship and Immigration Act 2009. The Secretary of State is statutorily bound to have regard to the need to safeguard and promote the welfare of children when making decisions which affect them. In this respect, the Supreme Court said that the rules and instructions tagged to the minimum income requirement are unlawful.
Read the Supreme Court’s full judgment here:
For all the latest news, features, events and jobs, sign up to Legal Cheek’s weekly newsletter here.