These five appeals concerned the minimum income rule for a non-European Economic Area partner applying to join a British or settled partner in the UK. In 2017 the Supreme Court upheld the threshold in principle, but found defects in how the rules and guidance dealt with children’s interests and how decision-makers considered other sources of support under article 8.
In July 2012 Appendix FM introduced a Minimum Income Requirement for non-EEA partners seeking to join a British citizen, settled person, refugee or person with humanitarian protection. The sponsor needed a gross annual income of at least £18,600, plus £3,800 for the first dependent non-EEA child and £2,400 for each further child. Only the sponsor’s earnings counted. The partner’s prospective earnings and third-party support were disregarded, although specified savings above £16,000 could make up a shortfall. The requirement applied at entry clearance, further leave and indefinite leave to remain, subject to limited exceptions for certain disability-related benefits.
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The previous test had asked whether the family could be maintained adequately without recourse to public funds. It was difficult to apply consistently and did not address longer-term reliance on benefits. The Migration Advisory Committee examined economic options and identified £18,600 as the point at which a two-adult household would cease to be entitled to income-related benefits. The Government adopted that figure, stating that sponsors should support their partners and enable them to integrate without burdening the taxpayer. The rules were approved by the House of Commons.
The claims
MM, a refugee earning about £15,600, could not meet the requirement with his Lebanese wife, a pharmacist who had employment prospects and family offers of support. They could not live together in Lebanon, and MM’s nephew AF contended that their separation affected his welfare. AM, a British citizen dependent on benefits, and SJ, a British citizen without realistic prospects of earning the required amount, also challenged the requirement. Their judicial review claims were decided on assumed facts. SS, whose British sponsor earned roughly £16,000 to £17,000, had been refused entry clearance; the tribunals allowed her appeal on Article 8 grounds because the couple could not live together in the Democratic Republic of Congo.
Blake J considered a combination of features unduly onerous but declined to strike down the rules. The Court of Appeal held that the requirement was rationally connected to legitimate aims and proportionate. The Supreme Court heard all five appeals together.
The requirement in principle
Lady Hale and Lord Carnwath, with whom the other Justices agreed, held that avoiding recourse to welfare benefits and promoting integration were legitimate aims connected with immigration control and the economic well-being of the United Kingdom. The Committee’s reasoning supplied a rational basis for £18,600, so the court could not substitute a lower figure merely because the rule caused hardship. Unlike the forced-marriage measure considered in earlier authority, this requirement had a genuine immigration purpose.
The rules were not themselves incapable of being operated compatibly with Article 8. They were the starting point, not the end, of the assessment. Decision-makers retained a discretion to grant entry clearance outside the rules, and tribunals had to decide whether refusal was compatible with Convention rights. The Court rejected a separate Article 14 challenge and treated the Court of Appeal’s refusal of permission on Mr Majid’s additional ground as determinative.
Children
Section 55 of the Borders, Citizenship and Immigration Act 2009 requires the Secretary of State, in exercising immigration functions including rule-making, to have regard to the need to safeguard and promote the welfare of children in the United Kingdom. Strasbourg authority, particularly Jeunesse v The Netherlands, requires national decision-makers to give children’s best interests significant weight and assess the practical consequences for them.
The assertion in the rules that this duty had already been taken into account was wrong in law. The instructions instead demanded exceptional factors that could only be alleviated by the applicant’s presence, such as support during major medical treatment or prevention of abandonment. That test did not treat best interests as a primary consideration. The Court held both the rules and instructions unlawful in this respect and said that the rules themselves must make clear that the statutory duty has been properly considered.
Other sources of funding
The Committee had recognised the economic case for counting a partner’s future earnings and reliable third-party support, but excluded them for practical reasons of uncertainty and verification. Giving priority in the rules to simplicity and ease of verification was not irrational at common law. Outside the rules, however, Article 8 requires an evaluative fair balance. A blanket exclusion could not constrain that assessment. Entry clearance officers and tribunals may judge the reliability of alternative funding on the evidence, and the instructions had to be revised to permit this. The Secretary of State could identify criteria for reliability, but could not exclude such sources altogether.
SS
The unchallenged finding was that there were insurmountable obstacles to the couple living together in the Democratic Republic of Congo. Although the tribunals had wrongly treated £13,400, a figure suggested below but not upheld, as a guide, that error was not material. Family life would be seriously ruptured, the sponsor had long-standing ties and British citizen children here, and no immigration-control or public-order factor favoured exclusion. The limited extent to which the family would burden the state could be weighed against the policy. After prolonged delay, there was no substantial ground for expecting a different result on rehearing.
Verdict: The Court unanimously allowed SS (Congo)’s appeal and restored the Upper Tribunal’s decision in her case. It allowed the other four appeals to a limited extent. It upheld the minimum income rule in principle but declared that the rules failed to give proper effect to the statutory duty towards children. It adjourned the question of remedies to allow amendments to the guidance to be proposed.
Source: R (on the application of MM (Lebanon)) v Secretary of State for the Home Department [2017] UKSC 10
