7th August 2018
On or before 8th July 2012 a non-EEA spouse of a British Citizen was able to successfully satisfy the maintenance requirements set by the Secretary of State for the Home Department (‘the SSHD’) under Paragraph 281 of the Immigration Rules, amongst other requirements, in order to be granted entry clearance/leave to enter the United Kingdom provided that the British Citizen earned a salary after income tax, national insurance contributions and housing costs at a level equivalent to or higher than the relevant income support levels set by the Government for a couple living in the United Kingdom and thus relying upon public funds. At the current rates this would have amounted to £114.85 per week and thus equivalent to an annual net income of £5,972.20. Further, any shortfall could have been satisfied by relying upon savings and third party financial support.
The maintenance requirements however were drastically increased by the SSHD on the whole, with very limited exceptions, under Appendix FM of the Immigration Rules with effect on 9th July 2012 by approximately 211.45% to 357.70 per week and thus equivalent to an annual gross income of £18,600.00 for a couple. Further, any shortfall can only be satisfied by relying upon savings in excess of £16,000.00 and on the whole, with very limited exceptions as set out in Paragraph 1(b) of Appendix FM-SE of the Immigration Rules, third party financial support is not permissible.
On 4th November 1950 the members of the Council of Europe signed the European Convention on Human Rights (‘the Convention’), including the United Kingdom which was passed by Parliament and ratified on 8th March 1951, which came into force as law on 3rd September 1953.
The United Kingdom then passed the Human Rights Act 1998 which was primary legislation to give further effect to the fundamental rights and freedoms guaranteed under the Convention into domestic law which came into force on 2nd October 2000.
Of the many rights and freedoms enshrined in the Convention the fundamental right to respect for Family Life (‘Article 8’) is one such right, though qualified, which ought to be guaranteed to all of the British Citizens resident in the United Kingdom.
The couples that are most likely to be affected by the maintenance requirements are those British Citizens working in low paid jobs as they would be earning no more than the national minimum wage rate and would therefore struggle to meet the annual gross income of £18,600.00. Further, this figure of £18,600.00 would increase by a further £3,800.00 to £22,400.00 for the first child who is not a British Citizen or settled in the United Kingdom and £2,400.00 for each additional child to £24,800.00 and so on.
In order for a British Citizen to meet the maintenance requirements of even the minimum £18,600.00 threshold which is applicable when there are no children involved and is merely earning the national minimum wage would require the partner if he/she is:
- between the age of 18 and 20 years and earning the current statutory rate of £5.90 per hour to work at least 61 hours per week
- between the age of 21 and 24 years and earning the current statutory rate of £7.38 per hour to work at least 49 hours per week
- aged 25 years and over and earning the current statutory rate of £7.83 per hour to work at least 46 hours per week.
Essentially all British Citizens that fall into categories (i) and (ii) above will have no choice but to expressly waive their rights under the Working Time Regulations 1998 and work above the maximum 48 hours per week prescribed in law in order to meet the maintenance requirements.
If you would like to find out more information please do not hesitate to contact our immigration team on 02034754321.
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