London: Laws which require low-income Britons to earn a set minimum income before they can obtain visas for some foreign spouses, including Australians, have been upheld in the country's highest court, despite judges ruling they cause "hardship" to separated families.
But the court has declared unlawful rules which can lead to foreign-born children being separated from their British parent, leading the government to issue an immediate temporary hold on applications while it digests the ruling.
In 2012, Prime Minister Theresa May, who was the then Home Secretary, made it more difficult for Britons to obtain visas for their spouses born overseas and outside of the European Economic Area (EEA), requiring they earn a minimum wage of £18,600 ($30,150) for at least six months. The financial threshold is higher if there are children involved.
The law does not recognise if the foreign spouse earns above this wage and only looks at the income of the Briton. Previously, couples only had to demonstrate to the Home Office that they could afford to look after themselves.
Four couples appealed the laws claiming they violated their human rights. One of the appellants, a child, also argued the law failed to take into account the need for the Secretary of State to safeguard and promote the welfare of children under the Borders, Citizenship and Immigration Act 2009.
The Supreme Court upheld the government's imposition of a minimum income requirement (MIR) in principle describing it as "acceptable."
"It has the legitimate aim of ensuring that the couple do not have recourse to welfare benefits and have sufficient resources to play a full part in British life," the court said.
The court described as "harsh" but "not irrational" the blunt rule that a foreign spouses income or third party support could not be taken into account saying simplicity had been given priority over flexibility.
Judges noted: "The fact that the MIR may cause hardship to many does not render it unlawful ."
Although it agreed with the argument made by the child appellant that the MIR "unlawfully fail to take proper account" of the Secretary of State's obligations to children. The court also said a person's "alternative sources of funding" should also be taken into account making the judgement a mixed outcome for all sides.
"It's very disappointing that the MIR as a whole is still in place," said Chai Patel from the Joint Council for the Welfare of Immigrants (JCWI).
"What we're celebrating is the fact that what we argued is the rules are unlawful because they don't take into account the best interests of the child," he said.
"The government will have to go away and rewrite the rules off the back of that."
The JCWI provided evidence in the case about the severe psychological distress separation causes in young children and estimates at least 15,000 children are affected along with tens of thousands of people.
"These are very young children, some of whom have never seen their parent in their memory, except on Skype," he said.
"Even when they are reunited the problems are very longstanding. We've heard from people whose children would start crying when they leave the room because they're not sure if they're ever going to come back again."
A spokesperson for the Home Office said the Court had endorsed the government's approach but said it would be "carefully considering" what the Court has said in relation to cases where children are involved.
"It has asked us to look at how in those cases we assess all the forms of financial support which may be available to the family, and ensure that the best interests of any children are taken into account as a primary consideration," the spokesperson said.
"We are therefore placing a temporary hold on applications which do not meet the minimum income threshold while we consider these issues."
Speaking to a gathering of foreign media at Whitehall, a spokesman for the prime minister said 10 Downing "welcomed" the ruling.
"Specifically targets people on low incomes"
Mrs May's 2012 reform was in response to growing political pressure to cut back immigration numbers.
In 2010 the then-Prime Minister David Cameron said the government would like to see net immigration in the "tens of thousands" rather than the "hundreds of thousands." In 2011, Mr Cameron went further and said "Net migration to this country will be in the order of tens of thousands each year. No ifs. No buts."
This lead to the Tories crackdown on migration which overwhelmingly targeted non-EU citizens, including Australians, as EU citizens are entitled to free movement.
But the migration target backfired when at the height of the EU referendum campaign, the net migration figure soared to its highest ever level at 330,000.
Mr Patel said family migration made up just a fraction of the UK's overall immigration but was an easy target.
"Because unlike business immigration these people don't have a voice," said Mr Patel.
"It specifically targets people on low incomes so it targets the people who have the least time and the least ability to hire lawyers to speak out and have their voices heard."
The government set the minimum income requirement at £18,600, determining it as the level of income where no benefits are required. The income requirement rises to £22,400 if a visa is being sought for a child and by an additional £2,400 for each further child.
The Office of National Statistics says the average wage in the United Kingdom is £23,099 and £28,213 for full time employees.
Mr Patel said the country's tough immigration rules like were damaging Britain's both at home and around the world.
"London is a global city and lots of Briton's travel abroad, its inevitable that people will fall in love without having clearly considering all the immigration consequences," he said.
"You're finding a lot of British citizens are now feeling that the country is making them feel unwelcome because they fell in love with someone from abroad and that that is somehow wrong."