Economic Migration Update
The minimum income requirements imposed by the Home Office in respect of British citizens1 (the Sponsor) wishing to bring a non-EEA spouse, partner or dependant to the UK have been 'held acceptable in principle' by the Supreme Court on 22 February 2017. However, the Supreme Court did outline key defective elements of the requirements and held that they:
- Failed to adequately give effect to the Secretary of State's duty to children pursuant to Section 55 of the Borders, Citizenship and Immigration Act 2009 (the Act); and
- Failed to include, into their calculations of the minimum income, alternative sources of funding.
While the Supreme Court held that revisions to the rules on minimum income requirements were necessary, it refrained from instructing what form such revisions should take or provide a strict deadline for compliance. The Secretary of State is now to submit written submissions in respect of her proposals to amend the rules accordingly; with the Supreme Court reserving the right to conduct a further hearing if necessary.
Theresa May, then Home Secretary, introduced Appendix FM to the Immigration Rules on 9 July 20122 which dealt with the entry requirements for non-EEA family members to join their relatives in the UK. A subsection of the appendix specifically dealt with the financial requirements and introduced the minimum income requirement (MIR) which requires the Sponsor to earn an annual salary of at least £18,600 before they will be entitled to bring their non EEA spouse to reside with them in the UK. The MIR increases by a further £3,800 to £22,400 where the family concerned includes a non EEA child and a further £2,400 for every additional non EEA child thereafter.
The MIR applies to the application stage in respect of:
- entry clearance;
- leave to remain3; and
- indefinite leave to remain.
The Home Office's previous position for the eligibility of a marriage visa only required that applicants satisfy the Home Office that they would be able to maintain and accommodate themselves and any relevant dependents “adequately in the UK without recourse to public funds”. The MIR, in attributing a strict monetary value and requiring that only the Sponsor's earnings be taken into consideration, removed much of the discretion previously available to UKVI case workers.
The MIR was challenged by way of Judicial Review through five separate applications on the grounds that it was both unreasonable and incompatible with the rights of the applicants and their partners under articles 8, 12 and/or 14 of the European Convention on Human Rights (ECHR). In the case of MM4, the MIR was also challenged on the grounds that it breached the Secretary of State’s duty to safeguard and promote the welfare of children when making decisions which affect them, under section 55 of the Borders, Citizenship and Immigration Act 2009. The successful challenges were appealed by the Home Office to the Court of Appeal which upheld the appeals. All five cases were subsequently joined together to be heard by the Supreme Court.
I. Acceptability, in principle, of the MIR
While it was accepted that the implementation of the MIR had caused, and would continue to cause, significant hardship to thousands of innocent couples, such hardship in and of itself does not necessary render such rules incompatible with the ECHR or at common law [at para 80]. The Court held that the MIR was formulated from a model of economic rationality and consequently upheld the principles established by the ECHR ruling in Konstatinov5 that the Court will not consider it unreasonable for an applicant to be required to "provide for the basic costs of subsistence of his or her family members with whom reunion is sought"6. The balancing exercise between national policy and an applicant's rights under the ECHR were held to have been properly taken into account by the Secretary of State in this respect.
The Secretary of State is bound by a specific duty to have "regard to the need to safeguard and promote the welfare of children who are in the United Kingdom”7. This duty was held to include the publication, and content of, relevant rules and guidance which the Court found to be wanting in respect of the MIR and proceeded to declare both the rules and guidance pertaining to the MIR as unlawful; requiring that they be amended in line with the principles of the ECHR.
The limited guidance provided in respect of children was dismissed as highly prescriptive and incompatible with the principles enshrined in the seminal case of Jeunesse8. The Jeunesse case required immigration officers specifically to have particular regard to the impact upon children when making decisions.
III. Alternative sources of funding
The MIR rules prevent the prospective earnings of the foreign partner or guarantees of third party support from being taken into account when calculating the applicant's ability to satisfy the MIR. The Court held that restrictive approach had stemmed "from matters of practicality rather than wider policy" [at para 98] and as such are far more difficult to justify when balancing the omission against an applicant's article 8 rights.
The Court warned the Secretary of State that the blanket refusal to include alternative sources of funding into the MIR calculations forced decision makers, at an early stage, to take a narrow approach that left their decisions vulnerable to being challenged through the Court for breaches of the ECHR. The Court did, however, stress that while excluding alternative sources of funding entirely was incompatible with their obligations under the HRA, there was nothing to preclude them from establishing "criteria by which reliability of such sources may be judge" [at para 100]. The Court then invited the Secretary of State to amend the rules "to indicate the circumstances in which alternative sources of funding should or might be taken into account" to avoid any subsequent challenge arising [at para 101].
1 To include persons settled in the United Kingdom, or a refugee or person with humanitarian protection in the United Kingdom
2 Further amended by CM 8423 which inserted a new Appendix FM-SE dealing with the procedural and evidential requirements and came into force on 20 July 2012.
3 Including further leave to remain
4 The applicant being a Lebanese refugee with limited leave to remain - EM (Lebanon) v Secretary of State for the Home Department  UKHL 64;  1 AC 1198.
5 Konstatinov v Netherlands  2 FCR 194.
6 Ibid at para 50
7 the Borders, Citizenship and Immigration Act 2009 Section 55 (1) (a)