“MIR”, an acronym for “Minimum Income Requirement”, has become a menacing buzzword in the hostile world of UK immigration law which is required as annual income to sponsor a spouse. From 11 April 2024, MIR will be increased from £18,600 to £29,000 and will subsequently rise to £38,700. MIR, set out as Appendix FM of the Immigration Rules, first arrived on the scene when Conservatives came to power in May 2010 and in July 2012 Theresa May, who was the Home Secretary at the time, pledged to reduce net migration and introduced income requirements for spouses coming to the UK. Before the introduction of the MIR, the rules required that the parties would be able to maintain and accommodate themselves and any dependants they have “adequately in the UK without recourse to public funds”, which included social housing and most welfare benefits but not the NHS, education and social care. The spin put on the MIR, during those days, was that these measures entailing a minimum income threshold of £18,600 (which 41% of the UK’s working population fell foul of) were necessary and were in the UK’s best interests. This caused widespread outrage and in the ensuing litigation, at first instance in R (MM (Lebanon) & Ors) v SSHD [2013] EWHC 1900 (Admin) the High Court held that the the MIR was unlawful and aggrieved persons enjoyed a measure of success before Blake J who held that to expect low wage earners with savings of £3000 to have £16000 in specified savings was “a rather cruel piece of mockery”. Overall, Blake J found the combination of more than one of the following five features of the “new rules” set out in Appendix FM to be so onerous in effect as to constitute a disproportionate and unjustified interference with a genuine spousal relationship.
Blake J five features were, the setting of the minimum income level to be provided by the sponsor at above the £13,400 level identified by the Migration Advisory Committee “MAC” as the lowest maintenance threshold under the benefits and net fiscal approach; the requirement of £16,000 before savings were usable to contribute to rectify an income shortfall; the use of a 30 month time period for forward income projection, as opposed to a 12 month time period; disregard of even credible and reliable evidence of undertakings of third party support effected by deed and fully supported by evidence of ability to fund; and the disregard of the spouse’s own earning capacity during the 30 month period of initial entry. But things were different on appeal. In an awkwardly written judgment R (MM (Lebanon) & Ors) v SSHD [2014] EWCA Civ 985, Maurice Kay, Aikens and Treacy LJJ allowed the government’s appeal. The Supreme Court held that the MIR—containing a core feature that demands a gross annual income of £18,600 to sponsor a partner for a visa and an additional requirements of £3,800 for the first child and £2,400 for each child thereafter—was lawful and in a collaborative judgment, Lady Hale and Lord Carnwath held that the challenge to the MIR’s validity failed. However, the court declared that the rules are unlawful because of their failure to give effect to the section 55 duty concerning children’s welfare. The Supreme Court’s judgment (reported as [2017] UKSC 10) was unanimous and Lord Kerr, Lord Wilson, Lord Reed Lord Hughes and Lord Hodge agreed with Lady Hale and Lord Carnwath.
The UK government intends to increase the MIR in line with the standard Skilled Worker general threshold. This would see the MIR increase to median earnings for jobs at the skill level of RQF3, currently £38,700. As part of a staged implementation, an initial increase to the 25th percentile of RQF3 jobs of £29,000 will be enacted initially.
A lack of specific information on family migrants and their sources of income, along with obligations under article 8 of the ECHR, mean expected impacts are uncertain and only very broad estimates of impact can be made. The policy change to the proposed MIR of £29,000 is assessed against UK annual gross earnings for all employees as reported by the Annual Survey of Hours and Earnings (“ASHE”) dataset used as a proxy for UK sponsor’s income, providing an indication of the eligible cohort of persons with enough earnings to meet the new MIR level. At the current MIR level of £18,600, 75% to 80% of the UK working population (based on ASHE earnings data) meet the MIR level. At the higher MIR of £29,000, all else being constant, around 50% to 60% of the UK working population could meet the threshold based on earnings alone. The Home Office says that before accounting for Article 8 claims and other income, an estimated range of between 10,000 to 30,000 people who may otherwise have qualified under the family route would be unable to do so, on the basis of earnings alone.
According to the Home Office, reflecting obligations under Article 8, even in cases the MIR is not met, it is assumed that some applicants may still be granted permission under the family route. As no exact estimate of eligibility through this route is possible, the full impact of the policy change is uncertain. A Statement of Changes to the Immigration Rules, which will implement the change to the £29,000 MIR will be laid before Parliament on 14 March 2024. This will amend Appendix FM to reflect the changes. The change to £38,700 will occur later on. Those wishing to escape the harsh effects of the changes to the MIR should make their applications as soon as possible.
There is some unexpected good news about Appendix FM.
From 31 January 2024, Appendix FM no longer requires that unmarried partners should live together for two years to get a spouse visa and all that is required is the couple have been in a relationship similar to marriage or civil partnership for at least two years.
United Kingdom Immigration Law Blog 