UK - R. (on the application of MM (Lebanon)) and Others v Secretary of State for the Home Department, 22 February 2017

Facts:

In 2012, a new Appendix FM was inserted into the Rules dealing with entry requirements for non-EEA family members to join their relatives in the UK, including more stringent MIR.  The MIR stipulate that the UK partner’s income must be £18,600, additional income is required for children, savings of £16,000 are required to make up an income shortfall, and neither the prospective earnings of the entering partner nor any third-party support can be taken into account.  Where the MIR is not met, there is an “exceptional circumstances” provision in the Instructions.  This allows entry clearance officers (“ECOs”) to consider whether there may be exceptional circumstances which make refusal a breach of article 8 ECHR rights, or where there may be compelling compassionate reasons which might justify a grant of entry clearance.

Four of the five cases before the Supreme Court (“the SC”) were claims for judicial review of the MIR.  The challenge was on the ground that the MIR is incompatible with the rights of the claimants and their partners (and a child living with one of them) under articles 8, 12 and/or 14 of the ECHR and also that it is unreasonable and ultra vires on common law principles.  The fifth case (that of SS) was an appeal against the refusal of entry clearance because of the failure to meet the MIR.  SS’s appeal to the First-tier Tribunal (“the FTT”) was allowed.  The ECO’s appeal to the Upper Tribunal (“the UT”) was dismissed.  The ECO’s appeal to the Court of Appeal was then allowed and the case was readmitted to the UT.

Decision & reasoning:

There were five issues considered by the court:

1) The validity of the Rules under the HRA

The four-stage test adopted in Quila and Bibi applied.  The ultimate issue was that considered by the fourth stage: whether a fair balance has been struck between individual and public interests.  It is the decision in an individual case which may be incompatible with Convention rights, rather than the general rule or policies, which also applies to the SoS’s duty under s.6 HRA not to act in a way which is incompatible with a Convention right.  Mahad (Ethiopia) applied: the rules are not of themselves required to guarantee compliance with the article.  There would be a breach of the duty if the Rules were couched in a form which made non-compliance in individual cases practically inevitable, but that was not the position in the present case.  Failure to meet the MIR does not in itself lead to an application for entry clearance being refused as the SoS retains a discretion to grant entry clearance outside the Rules in appropriate cases, which must be exercised in compliance with s.6 HRA.

2) The acceptability of the principle of the MIR

The MIR is in principle acceptable.  The fact that it may cause hardship does not mean that it is incompatible with ECHR rights or is otherwise unlawful at common law.  The aims of the MIR are legitimate: to ensure that couples do not have recourse to welfare benefits and have sufficient resources to be able to play a full part in British life.  There is a rational connection between the threshold and the aims.  This is sufficient to justify interference with article 8 ECHR.

3) The treatment in the Rules and in the Instructions of children (whether the duty in s.55 of the 2009 Act to promote children’s welfare was fulfilled)

Appendix FM incorrectly stated that the Rules took into account the duty to treat the best interests of children as a primary consideration.  The Instructions do not adequately fill the gap left by the Rules.  In this respect, the Rules and the Instructions were unlawful and to address this the guidance must be amended in line with principles stated by the Strasbourg court (including in Jeunesse).

4) The treatment in the Rules and the Instructions of alternative sources of funding

The reason for adopting a stricter approach to alternative funding sources in the new Rules was a matter of practicality rather than wider policy, reflecting the relative uncertainty and difficultly of verification of such sources.  Though the application of the restrictions may be harsh and capricious in some cases, it was not irrational in the common law sense for the SoS to give priority in the Rules to simplicity of operation and ease of verification.  Operation of the same restrictive approach outside the Rules is much more difficult to justify under the HRA, however.  This is because it is inconsistent with the character of evaluation which article 8 requires.  Nothing in the instructions to case officers prevent tribunals on appeal from judging the reliability of alternative sources.  It makes little sense for decision-makers at the earlier stages to be forced to take a narrower approach which they might be unable to defend on appeal.  This is not an issue going to the legality of the Rules, but the guidance to officers should make clear that, where the circumstances give rise to a positive article 8 duty as per Jeunesse, a broader approach may be required in drawing a fair balance.  ECOs are not precluded from taking account of other reliable sources of earnings or finance.

5) Whether SS’s case required readmission to the UT

The SC considered whether SS’s case required readmission to the UT.  Certain aspects of the reasoning of the FTT were flawed, but they were not held to be material.  If the FTT’s adoption of the old income test was misdirected, it was not determinative.  The SC considered the weight to be given to the factors weighing against the policy reasons relied on by the SoS to justify an extreme interference with family life.  Jeunesse applied.  Family life would be seriously ruptured, SS’s husband’s ties to the UK were extensive, there were insurmountable obstacles to the couple living in Congo, the relationship commenced before the Rules were changed and SS’s husband would have met the old income test.  It would be unfair to subject the appellants to the uncertainties of a rehearing unless there were substantial grounds for thinking that a different view would be reached.  The considerations analysed by the SC showed ample support for the conclusion reached by the FFT and the view of the UT that any legal errors were not material.  The SC therefore decide that the decision of the UT would be restored.

Outcome:

Held: Appeals allowed in part.

Observations/comments:

This case summary was written by Sally Jackson, LLM student at Queen Mary University, London.

Other sources:

‘Review of the Minimum Income Requirement for Sponsorship Under the Family Migration Route’, Migration Advisory Committee report, November 2011

‘Statement of Intent: Family Migration’, Home Office, June 2012

‘Grounds of Compatibility with Article 8 of the European Convention on Human Rights’, Home Office statement

Immigration Rules on Family and Private Life (UK)

Immigration Directorate Instructions (UK)

United Nations Convention on the Rights of a Child, article 3(1)

‘Every Child Matters: Change for Children’, UK statutory guidance, 2009

‘Family Friendly: The Impact on Children of the Family Migration Rules: A Review of the Financial Requirements’, Middlesex University and the Joint Council for the Welfare of Immigrants, 2015 (a report commissioned by the Office of the Children’s Commissioner for England)