Measures designed to reduce family immigration by up to 63%
21 November 2011
The United Kingdom Border Agency announced last week (November 16 2011) that that the Migration Advisory Committee (MAC) had recommended that the minimum salary to be demonstrated by people settled in the UK who wish to be joined by their spouses or partners should be dramatically increased.
Currently the Immigration Rules covering applications for such visas require only that the couple can show that they will be maintained "adequately”. "Adequacy” was interpreted by the Immigration Appeal Tribunal (long before the current era of the Asylum and Immigration Chambers of the First and Upper Tier Tribunals) in a case called KA and Others (Adequacy of maintenance) Pakistan  UKAIT 00065 to mean that the amount of money at the disposal of the family must amount to at least as much as it could expect to receive if its members were in receipt of benefits payments.
The Tribunal’s rationale was that such payments must reflect what the UK government regarded as an adequate level of support for those who either had no income of their own, or whose income was insufficient adequately to support them.
In the report submitted to the UKBA the MAC has calculated that on the basis of the test in KA and Others applicants currently have to show that they have £5500 after tax at their disposal after they have paid their rent or other housing costs. (This is because the income support payable to a couple weekly is around £105). This equates to an annual income of £13,700 before tax.
The MAC says that this amount of income is not capable of showing that the applicant for a visa is unlikely to become "a burden on the state" – and proposes therefore that the minimum income to be demonstrated should be increased to at least £18,600, and preferably to £25,700.
The MAC acknowledges that many UK based "sponsors” – the husband, wife or partner who is either a British citizen or has indefinite leave to remain in the UK – will not be able to meet its proposed test. It says:
"We estimate that nearly two thirds of sponsors would not have sufficient gross income to meet the higher of these thresholds.”
So that would mean a 63 % reduction in annual immigration of spouses and partners to the UK. The lower of the two suggested figures would achieve a reduction of 45%.
Of course the coalition government has committed itself to achieving a reduction in "net migration” – and back in December of last year the MAC indicated that it was not likely that a serious reduction could be achieved only by reforms to the employment immigration routes. So altering the Immigration Rules so that couples are unable to live together in the UK would not, presumably, be regarded by the government as anything other than a desirable outcome.
The proposed course could face difficulties on its way to being approved by Parliament however. Preventing people who are in a close relationship akin to marriage from living together in the UK potentially breaches the UK’s commitments under Article 8 of the European Convention on Human Rights. At paragraph 2.34 of its report the MAC says:
"We understand that, although not expressly mentioned in Article 8(2), case law (such as R (Mahmood) v Secretary of State for the Home Department  1 WLR 840) has established that the maintenance of an effective immigration control falls within permissible aims set out in that Article.”
The Court of Appeal’s judgment in the Mahmood case is actually quite old, and was decided before many judgments of the House of Lords and of European Court of Human Rights which are now authoritative in relation to obligations under Article 8. The correctness of the case was doubted by the Court of Appeal itself in its judgment in AF Jamaica v Secretary of State for the Home Department  EWCA Civ 240.