Reunite Families UK launches legal challenge to £38,700 minimum income requirement for family visas

Until April 2024 the MIR was set at £18,600. Currently it is £29,000 with a plan reported earlier this year to raise it to £34,500 then £38,700 by 2025.

The legal challenge, an application for judicial review filed this week, comes amid chaotic and hasty decision making at the Home Office – driven, says RFUK, not by a considered approach to the revision of such an important policy, but by the imperative to been seen taking swift action on net migration. RFUK lawyers at Leigh Day say the decision making process has been so convoluted that there is a now a live dispute as to what the Secretary of State has in fact decided. 

RFUK’s legal team will be arguing that the decision in December 2023 to increase the MIR to £38,700, in line with the salary requirement for the skilled worker visa, was made without analysis and in breach of critical public law duties.  

The increased MIR as it is currently reported will apply to British citizens or settled residents who wish to apply for a visa for their spouse or partner, child, or other family member to come and live with them in the UK. By 2025 the British citizen sponsor will have to show that they earn £38,700 before the Home Office will allow their family member to come and live with them in the UK. It does not matter how much the non-British family member earns outside of the UK, as those earnings will not be taken into account on the first-time application. 

RFUK, a Community Interest Company which supports families who are affected by the UK’s spouse visa rules, says the initial increase to £29,000, actioned last month, is already having a huge impact on families unable to meet the requirement.The current MIR for family member visas was decided in 2012 after a public consultation and the provision of detailed analysis from the Migration Advisory Committee (MAC). It was set at the level at which a single-earner household was no longer eligible for tax credits or housing benefit so that migrants had enough to live on for “participation and integration in British society” but would not be “a burden on the state”. 

The objective is the same in 2024, but no reasoning has been offered for the increase.  

The claim will question whether there was a sound legal basis for the decision to increase the MIR and whether the decision was taken in line with advice.

The three grounds on which RFUK considers the new rule unlawful are:

• It fails to fulfil the Secretary of State’s Tameside duty of inquiry – there was no indication that the Secretary of State took any steps regarding the extent to which raising the MIR in line with the threshold for a Skilled Worker visa was likely to further the objectives the increase was intended to pursue.  
• It breaches the Secretary of State’s Public Sector Equality Duty laid out in s 149(1) of the Equality Act 2010 – it is clear that such a substantial increase to the MIR will have a disproportionately adverse impact on women, members of certain ethnic groups, and young people. Partners and parents who would be sponsored by people working in the UK are more likely to be women. 
• It breaches the Secretary of State’s obligations under s 55 of the Borders and Citizenship Act 2009 which enacts Article 3 of the UN Convention on the Rights of the Child. The planned increase to the MIR will result in many children being separated from a parent living abroad, because the British sponsor is no longer able to show the requisite level of income and/or savings.  Even at its existing level, the MIR has a significant impact on the mental health and wellbeing of British children, says RFUK. In a survey of single-parent households affected by the MIR, 92% said that their children’s mental health had suffered as a result of the separation.

Caroline Coombs of Reunite Families UK said: 

“In the last decade, this policy has somehow continued to exist under the radar devastating countless British and settled citizens and their partners , families and children. The general public have no idea this policy exists until sadly they come up against it and policymakers seem hellbent on ignoring its impacts even when they are being repeatedly told them. 

“The increases came as a complete surprise to the community we represent - and at a time when people all over the UK have been struggling with a relentless cost of living crisis. Whilst they have been working hard to earn and save enough to sponsor their partner, the government has punished them once again and for many, their dream of a family life together here has been shattered.  

“We hope that through the legal case, Ministers will pursue a better, more humane family migration policy. One that doesn’t discriminate based on one’s income and instead recognises the value of bi-national couples and families not just for the economy but for our society as a whole.” 

Leigh Day partner Tessa Gregory, who represents Reunite Families UK said: 

“The decision to increase the minimum income requirement is already having a devastating impact on thousands of families, parents and children who are struggling to come to terms with a future where they are indefinitely separated due to the increased financial threshold. 

“Our client, RFUK, is appalled that a decision of such import appears to have been taken by the Home Secretary in such a cavalier manner: without proper analysis; and in breach of critical public law duties such as assessing the impact of the decision on protected groups. RFUK will be asking the Court to quash the decisions on the basis that the Home Secretary has acted unlawfully.”

Reunite Families UK's legal action is supported by Good Law Project and is being crowdfunded.

Counsel instructed by Leigh Day are Raza Husain KC of Matrix Chambers, Eleanor Mitchell of Matrix Chambers, and Sarah Dobbie of Doughty Street Chambers.