R (on the application of MM (Lebanon)) (Appellant) v Secretary of State for the Home Department [2017] UKSC 10

The long winded battle to challenge the Home Office’s UK Immigration Rules with regards to income requirements for settlement visas, initiated in June 2012, has finally found its final destination – the Supreme Court – in February 2017. The long awaited judgment is somewhat disappointing but does give a glimmer of hope in certain circumstances.

Background

For those who may not have followed the case, please refer to my previous post . In a nutshell, in June 2012, the Home Office introduced new UK Immigration Rules which were meant to ensure, according to the Government, that British nationals who married a foreign spouse were able to sustain themselves without having to rely on the Government.

Whilst, in theory, this sounds like a noble principle which everyone can apply to, the actual threshold that was set – an Annual Income of £18,600 – was above the minimum wage that a British national would have been entitled to earn, working full time. In essence, this meant that a lot of couples were technically barred from being able to join their loved ones, where their loved one was on a low income.

The Legal Challenge

This case (an amalgamation of other similar cases) originally began with a judicial challenge against the Government which was firstly allowed in the Upper Tier Tribunal but subsequently rejected in the Court of Appeal (see the previous article court of appeal).

The current Supreme Court verdict, reached in February 2017, comes as a disappointment for the thousands of couples and many UK lawyers who had hoped that the decision would force the Government to review the minimum income threshold rules, with a hope that the income threshold would be reduced to that of the lowest possible income threshold ordinarily set by the Government for British nationals, as stated in the recent court ruling:

Under both the “benefits” and the “net fiscal” approaches, the lowest possible threshold was £13,400 a year [8] 

Not Unlawful but somewhat harsh

The Supreme Court found the income threshold rules not to be unlawful, although the Court acknowledges the difficulties and inherent unfairness for particular groups:

The fact that the income threshold may cause hardship to many does not render it unlawful. It has the legitimate aim of ensuring that the couple does not have recourse to welfare benefits and have sufficient resources to play a full part in British life. The income threshold chosen was rationally connected to this aim and the acceptability in principle of a MIR has been confirmed by the ECHR.

It does, however, present a serious obstacle to their enjoying family life together… the MIR may constitute a permanent impediment to many couples because the sponsor will never be able to earn above the threshold and the couple will not be able to amass sufficient savings to make good the shortfall.[81] 

A Glimmer of Hope

Although the current appeal did not reach the main objective, that of nullifying the minimum income threshold, the Court highlighted the need for the Government to exercise more flexibility to ensure compatibility with its obligation under Article 8 European Convention on Human Rights (right to family and private life) and the best interests of the child (s55 of the Borders, Citizenship and Immigration Act 2009).

This does not in effect change the Immigration Rules, as the Home Office have always had the opportunity to consider special circumstances and grant such applications based on such circumstances, outside the Immigration Rules (as it frequently does for applications made from within the UK but has rarely exercised such discretion with regards to applications from abroad).However,

 It seems that from the spirit of the court judgment, the judges seem to declare that the Home Office should adopt a more flexible approach, especially when considering the best interests of children. Such flexibility, as suggested by the Court, should include considering third party support and alternative income, conditions which were previously not accepted by the Home Office under the Immigration Rules.

How the Judgment could be applied: 

According to the recent judgment, an American husband and British wife, whereupon the wife is earning minimum wage but her husband has good prospects of employment or even a conditional job offer in the UK, and the couple have a child in the UK, would ordinarily have their application refused, but in accordance with the recent judgment, the Home Office should be more flexible in such circumstances and consider granting leave to such a couple, in safeguarding the protection of the best interests of the child and Article 8 ECHR, especially where there are other, verifiable sources of income . in the judgement the court refers to this :

A tribunal on an appeal can judge for itself the reliability of any alternative sources of finance and it makes little sense for decision-makers at an earlier stage to be forced to take a narrower approach. In this respect aspects of the Instructions require revision to ensure that decisions are taken consistent with the duties under the HRA. It will be a matter for the Secretary of State to decide if it is more efficient to revise the Rules themselves to achieve this. [101]

the court further held that:

We would also declare that the rules fail unlawfully to give effect to the duty of the Secretary of State in respect of the welfare of children under section 55 of the 2009 Act. Save to that extent we would dismiss the challenge to the validity of the rules. [109] 

 The Way Forward

The Court has directed the Home Office to revise the Guidance with which the Home Office deals with children. We expect that this newly revised guidance will direct caseworkers to be more flexible:

The issue is always whether the authorities have struck a fair balance between the individual and public interests [44]

This is especially necessary in circumstances where British women are being forced to care for children alone as well as having to meet the minimum income threshold alone, a situation which creates a significant amount of struggle for those involved:

Female sponsors, who have constituted as many as a third of the total, are disproportionately affected, because of the persisting gender pay gap, as are sponsors from certain ethnic groups whose earnings tend to be lower, and those from parts of the country where wages are depressed. [81] 

As an immigration solicitor, I am happy that this decision could open new avenues for more couples to be reunited with their loved ones, easing the headache for those who are affected by such stringent policies.

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