Court of appeal case on spouse maintenance

BY admin IN Family Law

Thousands of British people and their partners are awaiting the judges’ decision on this hearing that concluded in the Court of Appeal. The case concerned an appeal brought to the Court of Appeal from the Home Office. The decision they were appealing was an appeal allowed by the Upper Tribunal on human rights grounds. In that case, the judge made specific comments on the current partner maintenance requirements in Appendix FM of the Immigration Rules. In particular he questioned the level of income being set at £18,600 PA and the fairness of the requirements of meeting this income level using cash savings i.e. that you need to demonstrate savings to cover a 2 ½ year period and £16,000 of savings isn’t even considered.

In the court of appeal, the Home Office maintained the rationale of setting a £18,600 PA income requirement while the respondents’ counsel questioned the logic in setting an income level well above the national income average and why a partner’s potential earnings in the UK could not be considered amongst other arguments. The decision on this case is likely to be in the next 3 months – a promise made by the judges that they would take as long as the Upper Tribunal judge had. If the Home Office lose they are likely to appeal to the Supreme Court as too will the respondents, and with Supreme Court hearings now being listed in 2015, this is when we are likely to be at the next stage of this very significant case. If the Home Office lose and the maintenance requirements are found to be incompatible with the Human Rights Act 1998 and the Home Office do not appeal, then we are probably only going to see a change in the Immigration Rules after the deluge in appeals being lodged to the First Tier Tribunal on those grounds.

This will all happen at a time that all the political parties step into election mode and immigration becomes a campaign issue. David Cameron has issued his pledge that the Conservatives will stage a referendum on the continued nature of the UK’s involvement with the European Union with very specific mention of the influence of the European Court of Human Rights. Therefore, the question of whether the maintenance requirement is compatible with the Human Rights Act 1998 – itself a transposition of the European Convention of Human Rights – could then hang on the UK’s obligations in the future.

For now the maintenance requirement stands.

Statement of Changes HC1138

This month there were two statements of changes to the Immigration Rules – the first fairly insignificant but the second was pretty extensive. The essential changes are:

• Tier 2 (general) migrants can now apply for visas for up to 5 years;
• The minimum income level for Tier 2 Migrants has gone up from £20,300 to £20,500;
• The minimum income for those exempt from having to pass the Resident Labour Market Test is now £153,000;
• The minimum income for those exempt from having to advertise on Job Centre Plus is now £71,600;
• Tier 1 (Entrepreneur) migrants now have to show maintenance of £3,310 for 90 days and not £3,100 for initial leave and £945 for leave to remain;
• Tier 1 (Entrepreneur) and Tier 2 (general) migrant dependents have to show maintenance funds of £630 if they have been in the UK for more than 12 months, otherwise they have to have £630;
• The Tier 1 (Exceptional Talent) visa has included Tech City UK as able to allocate endorsements;
• The Tier 4 (general) Migrant maintenance levels have gone up to £1020 for those studying in London and £820 for those elsewhere;

We at Westkin Associates are a law firm, with over 14 years experience, specialising in immigration.

For more information on exactly how we will help you, contact: +44(0)207-016-7786 or email info@westkin.com.