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Supreme Court upholds immigrant spouses' minimum income principle

22 February 2017

Rules setting a minimum income requirement before non-EEA nationals are allowed to join their spouses to reside in the United Kingdom are acceptable in principle and in accordance with human rights obligations, even if they operate harshly in some cases, the UK Supreme Court ruled today.

However the current rules, and instructions to entry clearance officers based on the rules, are incompatible with the article 8 right to family life to the extent that they fail to take account of the Secretary of State’s duty under s 55 of the Borders, Citizenship and Immigration Act 2009 to have regard to the need to safeguard and promote the welfare of children when making decisions which affect them. It was also wrong to fail to take account of alternative sources of finance, at least at the stage of applying human rights considerations independently of the rules.

Seven judges gave the unanimous rulings in four appeals, by MM and others, brought to test the legality of amendments made in 2012 to the Immigration Rules, which introduced a minimum income requirement of at least £18,600 per annum with additional sums for dependent children, to be satisfied by the sponsoring spouse or civil partner. A fifth appeal, by SS, challenged the refusal of entry clearance on the basis of exceptional circumstances in that she and her husband would be unable to live together in the Democratic Republic of Congo, her home country and from which her husband had been a refugee.

Arguing that the minimum income requirement was not rationally connected to its legitimate aims, due to the high proportion of UK workers, many in essential public services, who fell below that level of earnings, the four applicants partly succeeded in the High Court, and SS won an appeal to the First-tier Tribunal, affirmed by the Upper Tribunal. The Court of Appeal allowed the Home Secretary's appeal in each case, and the applicants appealed.

Allowing the first four appeals in part, and allowing SS's appeal, Lady Hale (Deputy President) and Lord Carnwath gave a joint judgment with which Lords Kerr, Wilson, Reed, Hughes and Hodge agreed.

The judges said that in a challenge to the legality of the rules as such, as well as to their application to individual cases, it was legitimate to follow the four stage proportionality test to decide whether the Home Secretary had struck a fair balance between the individual and public interests, taking into account the relevant factors identified by the European Court of Human Rights and the significant weight to be given to the interests of children.

As the rules envisaged a two-stage process, the second involving a fact sensitive consideration of any human rights issues outside the rules, the duty of the tribunal hearing appeals against any adverse decision of the Home Secretary was to ensure that the ultimate disposal of the application was consistent with the ECHR. On that approach, there was no basis for challenging the new rules as such under the Human Rights Act.

Regarding the principle of a minimum income requirement, the Human Rights Court had confirmed this as acceptable and the fact that the requirement might cause hardship to many did not render it unlawful: it had the legitimate aim of ensuring that the couple did not have recourse to welfare benefits and had sufficient resources to play a full part in British life. The income threshold chosen, based on work of the Migration Advisory Committee which was "a model of economic rationality", was rationally connected to this aim.

The treatment of children was however defective: the rules asserted that the s 55 duty had been taken into account but did not give direct effect to it, and the instructions in their current form did not adequately fill the gap. They required to be amended in line with the principles established by the Human Rights Court, and to make it clear that the duty had been taken into account.

One challenge was over the treatment of alternative sources of funding, as there were restrictions in the rules on taking into account the prospective earnings of the foreign spouse or partner, or guarantees of third party support. The court said that although harsh, it was not irrational for the Home Secretary to give priority in the rules to simplicity of operation and ease of verification. Operation of the same restrictive approach
outside the rules, however, was a different matter and inconsistent with the evaluative exercise required by article 8. A tribunal on an appeal could 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 required revision to ensure that decisions were taken consistent with the duties under the Human Rights Act. It was for the Home Secretary to decide whether it was more efficient to revise the rules themselves to achieve this.

In SS's case, in the light of the crucial finding by the First-tier Tribunal that there were insurmountable obstacles to the couple living together in the Congo, any errors in the tribunal’s judgment did not after the long delay since the tribunal's decision require the appeal to be remitted for rehearing. It would be unfair to subject the couple to the uncertainties of a rehearing unless there were substantial grounds for thinking that a different result would be reached, which was "far from the case".

Click here to access the judgment.

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