Britain's top court backs government on minimum income rule for non-European spouses

Supreme court justices have unanimously backed Theresa May’s “particularly harsh” £18,600 minimum income rule for British citizens to bring non-European spouses into Britain that campaigners say has led to tens of thousands of families being separated.

Prime Minister Theresa May introduced a rule in 2012 when she was interior minister that Britons who wanted to bring spouses from outside the European Economic Area to the UK had to be earning at least £18,600 (€22,027) a year. The threshold rises to £22,400 (€26,522) if there is one or more non-European-born child in the family.

The markers replaced a previous, more general, requirement to show the Home Office that the incoming partner would not be a drain on public resources and that the couple or family could adequately support themselves.

It was estimated in 2015 that the £18,600 threshold excludes 41% of the British working population, including 55% of women, from bringing a foreign spouse to live in Britain. The income of the non-European partner does not count towards the threshold.

In its ruling, the Supreme Court acknowledged the minimum income requirement had caused significant hardship for thousands, but ruled that, in principle, it was not inconsistent with the European Convention on Human Rights.

"[The limit] has caused, and will continue to cause, significant hardship to many thousands of couples who have good reasons for wanting to make their lives together in this country, and to their children ... But the fact that a rule causes hardship to many, including some who are in no way to blame for the situation in which they now find themselves, does not mean that it is incompatible with the Convention rights or otherwise unlawful at common law," the court said.

The income threshold, it added, was "part of an overall strategy aimed at reducing net migration," with aims that were "no doubt entirely legitimate."

However, the court criticised the lack of focus on the treatment of children and the ability of Home Office staff to consider alternative assets when they assess the earning ability of the British spouse.

These technical points mean the ruling could give limited hope to some of the separated families with children.

"These are significant victories for families up and down the country," Saira Grant, Chief Executive at the Joint Council for the Welfare of Immigrants, said.

"This judgment confirms that the government's position is now untenable and they must now take immediate steps to protect the welfare of children in accordance with their legal duty."

The interior ministry said the court had endorsed its approach in setting an income threshold for family migration that prevents burdens on the taxpayer.

"This is central to building an immigration system that works in the national interest," it said in a statement.

It added however: "We are carefully considering what the court has said in relation to exceptional cases where the income threshold has not been met, particularly where the case involves a child."