Personal Immigration

Supreme Court hands down judgment in MM (Lebanon) minimum income requirement case

Exactly 12 months after starting to hear the case, the Supreme Court has today handed down its long-awaited judgment in R (on the application of MM (Lebanon) (AP) (Appellant) v. Secretary of State for the Home Department (Respondent) [2017] UKSC 10.

The issue in the case was whether the introduction into the Immigration Rules of a minimum income requirement for a UK citizen or resident wishing to bring a non-EEA spouse or partner into the UK was in breach of art. 8 ECHR, unlawfully discriminatory and/or irrational?

Facts

Under previous Immigration Rules, such a couple applying for permission for the non-EEA partner to reside in the UK had to demonstrate that they could maintain themselves adequately without recourse to public funds. From 9 July 2012, a new minimum income requirement was introduced whereby the UK partner must have a gross annual income of at least £18,600. The appellants challenged the lawfulness of the minimum income requirement.

Two of the appellants were British citizens who could not meet the minimum income requirement in order to bring their non-EEA spouses to the UK. Another was a refugee resident in the UK who was similarly unable to satisfy the minimum income requirement.

At first instance, Blake J held that the minimum income requirement constituted an unjustified interference with affected couples' article 8 rights. His decision was overturned by the Court of Appeal.

Held

The Supreme Court has today held that the minimum income requirement in Appendix FM is acceptable in principle and a matter properly taken into account in the balancing process.

However, the rules and instructions to Home Office caseworkers fail to properly 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 best interests and welfare of any child in the UK when considering the admission of someone whose presence or absence impacts on the child. This is despite the fact that in paragraph GEN.1.1 of Appendix FM to the rules it is asserted that it “takes into account” the Secretary of State’s duties in respect of children.

The Supreme Court has also held that the Home Office instructions to caseworkers require amendment to consider alternative sources of funding when considering a claim under article 8. The Court observed that in light of this conclusion, the Secretary of State might wish to consider whether it would be more efficient to revise the rules themselves, to indicate the circumstances in which alternative sources of funding should or might be taken into account, rather than simply to revise the guidance.

It remains to be seen whether the Secretary of State will, or will not, accept this invitation. However, the Court's observation at paragraph 99 that "nothing that is said in the instructions to case officers can prevent the tribunal on appeal from looking at the matter more broadly" should act as a suitable warning.

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