On 5 July 2013, the High Court handed down its judgment in MM and others v Secretary of State for the Home Department  EWCA 1900 (Admin). This was an application for judicial review of the changes to the family rules in the Immigration Rules which took effect on 9 July 2012.
The High Court did not go as far as declaring that the family rules were unlawful. However, it did find that that the earnings threshold amounted to a disproportionate interference with family life.
MM is a refugee from Lebanon, whose Lebanese wife could not qualify to come to the UK under the new family rules due to the financial requirements. The other claimants were both British nationals whose foreign national spouses were similarly barred.
For the first time, the new family rules have set a required level of income for a person with the right of residence in the UK to bring their spouse or partner, and any non-EEA dependent children, to the UK to join them. Prior to this, the test was that families could support themselves without recourse to public funds and that they would be able to maintain themselves at just above the levels paid to those on benefits. The new threshold is set at £18,600 per year. The rules also specify which types of income can be included and how these can be evidenced.
The result has been that numerous families have been unable to live in the UK together because they cannot meet the financial requirements.
The claimants sought judicial review of the new family rules on the basis that the rules breached their right to private and family life under Article 8 of the European Convention on Human Rights.
Mr Justice Blake had no difficulty in finding that the new rules interfered with the claimants’ human rights. Indeed, he found the interference to be greater than immigration rules which had previously been struck down for setting a minimum age for international couples marrying in the UK. He also emphasised the “indefeasible right of the British national to reside in […] her own country” and noted that, if the non-EEA spouse cannot obtain residence in the UK under the rules, the British national would have to leave the UK to enjoy family life. He said that such interference requires “compelling justification”.
Being a human rights case, the main issue was therefore whether there was such justification.
Justice Blake identified five features of the new rules that, when taken together, went beyond what could be justified. These were:
- the setting of the minimum income level to be provided by the sponsor at above £13,400;
- the requirement of at least £16,000 of savings before such savings could contribute to rectify an income shortfall;
- the use of a 30-month period for forward income projection, as opposed to a 12-month period which could be applied in a borderline case of ability to maintain;
- the disregard of even credible and reliable evidence of undertakings of third party support effected by deed and supported by evidence of ability to fund; and
- the disregard of the foreign spouse’s own earning capacity during the 30-month period of initial entry.
In relation to the first of these factors, Justice Blake noted that the Migration Advisory Committee (MAC) had stated that £13,400 was the lowest level of income that was appropriate under their preferred method of calculation. He also noted that this is close to the adult minimum wage for a 40-hour week. A threshold of £18,600 therefore excludes a large proportion of the population.
Justice Blake was also particularly critical of the fifth of these factors, which he found to be irrational. This is because the whole policy is geared towards the income needs of a family of two people, yet the policy deliberately fails to take into account the earning capacity of both people.
What happens next
Permission to appeal has been granted, and the cases are likely to proceed to the Court of Appeal. The Home Office has in the meantime responded by announcing that, where an applicant does not meet the minimum income threshold and there is no other reason to refuse it, the application will be put on hold. How long these applications will remain on hold is not yet known.
The Penningtons immigration team has seen an increased number of enquiries from those requiring advice on family applications. As the immigration rules become more complex and the documentary evidence required by the Home Office becomes more onerous, it is important that individuals seek appropriate legal advice at the earliest stage.