The judge said it was for the home secretary to decide if any changes should be made to the rules
UK family immigration rules are not unlawful but are “onerous… and unjustified”, the High Court has ruled.
Three claimants had challenged the new measures which set earnings thresholds for people wishing to sponsor the UK visas of spouses coming from abroad.
A judge said the court would not “strike down” the rules, but urged the home secretary to adjust them.
The Joint Council for the Welfare of Immigrants (JCWI), said the ruling proved they were “disproportionate”.
The Home Office introduced the rules in July 2012 to ease the financial burden of migration on the state.
Under the new family migration policy only British citizens, or those with refugee status, who earn at least £18,600 a year can sponsor their non-European spouse’s visa.
This rises to £22,400 for families with a child, and a further £2,400 for each extra child.
‘Sit up and listen’
The policy had been challenged on the basis that the rules were discriminatory and interfered with Article 8 of the Human Rights Act, the right to a private and family life.
The court concluded that the measures were not unlawful on the basis of discrimination, or due to a conflict with the statutory duty to regard the best interests of children while making visa decisions.
Mr Justice Blake, sitting in London, said it would not be appropriate to “strike down” the financial requirements set out in the rules – which were laid before Parliament in June 2012.
However, he said that the earnings threshold was disproportionate if combined with one of the four other requirements in the rules – for example, an inability to supplement a shortfall in income with savings, unless the savings were over £16,000.
He said that while there may be sound reasons in favour of some of the individual requirements “taken in isolation”, the combination of more than one of the five requirements of the rules was “so onerous in effect as to be an unjustified and disproportionate interference with a genuine spousal relationship”.
The judge also suggested that a more “proportionate financial requirement” might be to reduce the minimum income required of the sponsor alone to about £13,000.
In a written ruling, the judge said it would be “for the secretary of state, if she sees fit, to make such adjustments to the rules as will meet the observations of this judgement”.
The BBC’s legal affairs correspondent Clive Coleman says it is now for Mrs May to decide whether any amendments should be made to the rules to satisfy the requirements of proportionality.
The home secretary has been given permission to appeal.
‘Causing anguish’
Responding to the ruling, 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.”
JCWI’s legal and policy director, Saira Grant, said that while she was disappointed the financial requirement rule had not been overturned, her organisation was “very pleased that the judiciary has given a clear message that £18,600 is a disproportionately high requirement”.
She said the judge’s comments represented a “clear message to (Home Secretary) Theresa May and she needs to sit up and listen”.
Ms Grant added that the judge’s suggestion of a financial requirement of about £13,000 was a “reasonable, workable figure”, but that people would still lose out.
Meanwhile, a group of MPs and Lords known as the All-Party Parliamentary Group on Migration has called for an independent review of the minimum income requirement.
In a review published last month, it looked at more than 175 cases from families affected by the rules.
Baroness Hamwee, chairwoman of the review and Liberal Democrat home affairs lead in the House of Lords, said the parliamentary group had been “struck by the evidence showing just how many British people have been kept apart from partners, children and elderly relatives”.
“These rules are causing anguish for families and, counter to their original objectives, may actually be costing the public purse,” she said.
The group said thousands of Britons had been unable to bring non-EU spouses to the UK since the minimum earnings requirements were introduced.
http://www.bbc.co.uk/news/uk-23198144
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