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Supreme Court Upholds Minimum Income Requirement for Partner Visas

Posted by Ilham Malik on May 19, 2017

MM (Lebanon) & Ors, R (on the applications of) v Secretary of State and another [2017] UKSC 10

This case concerned five appeals heard before the Supreme Court in relation to the minimum income requirement (MIR) of £18,600 for sponsoring foreign partners.

Brief facts and chronology

On 9 July 2012, Appendix FM was inserted into the Immigration Rules with a new MIR that required the sponsoring partner of a non-EEA national to have a gross annual income of at least £18,600.

As a result of the changes five appeals came before the Supreme Court – MM, AF, AM, SJ and SS. MM was a Lebanese refugee resident in the UK, married to a Lebanese woman but earning less than the MIR. MM lived with his sister and her child, AF, who viewed MM as a father figure. AF was included as an interested party to the proceedings.

AM was a British citizen married to a Pakistani woman with whom he had 5 children with British nationality. He was unemployed and dependent on benefits. SJ is a British national woman married to a Pakistani man. She had no prospect of employment at the MIR level and contended that the MIR was indirectly discriminative of women, particularly British Asian women.

The Claimants MM, AF, AM and SJ applied judicial review of the MIR on the basis that it unjustifiably interfered with their rights under Articles 8, 12 and/or 14 of the European Convention for Human Rights. AF’s appeal further contended that the MIR failed to take account of the Secretary of State for the Home Department’s (SSHD) duty under section 55 of the Borders, Citizenship and Immigration Act 2009 to have regard to the need to safeguard and promote the welfare of children

The claims enjoyed success before Blake J at the Administrative Court where it was held that the MIR was “so onerous in effects as to be an unjustified and disproportionate interference with a genuine spousal relationship”.

This decision was overturned in the Court of Appeal which held that appropriate weight had to be given to the judgement of the SSHD and the minimum income level was not irrational, inherently unjust or inherently unfair. The Claimants appealed to the Supreme Court.

The fifth appeal was brought by SS, a national of the Democratic Republic of Congo married to a British citizen. SS applied for entry clearance in 2012 and was refused due to a failure to meet the MIR on the facts of the case.  SS had succeeded at the First-Tier and Upper Tribunals of the Immigration and Asylum chamber on the finding that there were insurmountable obstacles to family life continuing abroad however, the Court of Appeal allowed the Entry Clearance Officer’s appeal. 

Decision of the Supreme Court 

  1. The principle of MIR

The Supreme Court acknowledged that the MIR caused and would continue to cause significant hardship to couples but held that the there was a rational connection between the legitimate aims of the SSHD and the income threshold. The court therefore upheld the MIR in principle.

  1. Treatment of children

The Supreme Court found that the Immigration Rules and instructions were unlawful as they failed to take regard of section 55 of Borders, Citizenship and Immigration Act 2009 in relation to the welfare of the child. The court directed that the rules and policies needed to be amended in line with the principles established by the ECtHR.

  1. Alternative sources of funding

The Supreme Court accepted that it was not irrational for the SSHD to discount alternative sources of income under the Immigration Rules, but found that it was inconsistent with the evaluative exercise required under Article 8. The Court subsequently held that the SSHD instructions required amendments to consider alternative sources of funding when considering a case under Article 8.

Conclusion

The Supreme Court allowed SS’s appeal and allowed the other appeals to a limited extent.

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