MM, R (on the application of) v The Secretary of State for the Home Department

Immigration Rules imposing a minimum income requirement for the admission of non-EEA spouses engage Article 8 where they prevent genuine couples from living together. A wide margin of judgment applies to immigration and economic policy, but it does not permit requirements that cumulatively impose an excessive burden on British citizens or recognised refugees. Relevant features included the income threshold, the £16,000 savings rule, a 30-month financial projection, exclusion of credible third-party support, and exclusion of the applicant spouse’s prospective earnings. Their combined effect was disproportionate and unlawful. The court declined to quash the Rules, because individual applications and human-rights appeals remained available. A narrow exceptional-circumstances discretion did not cure the incompatibility.

Three conjoined judicial review claims challenged amendments to the Immigration Rules introduced in July 2012. The amendments required sponsors seeking entry clearance for non-EEA spouses to satisfy specified financial requirements, including a gross income of £18,600, substantial savings where income was insufficient, specified evidential requirements, and exclusion of third-party support and the prospective spouse’s future earnings.

The claimants included a recognised refugee unable to live with his wife in his country of nationality, and two British citizens unable to satisfy the new threshold. The claims alleged incompatibility with Articles 8 and 14 of the Convention, irrationality, and, in one case, failure to have regard to a child’s welfare under section 55 of the Borders, Citizenship and Immigration Act 2009. The central issue was whether the combined financial requirements were a proportionate interference with family life.

1. Disposition. The court found substantial merit in the challenges and held that the combined effect of the impugned requirements was disproportionate and unlawful when applied to British citizens and recognised refugees. It nevertheless declined to quash the Rules or make a formal declaration.
2. Status of the Rules. The Immigration Rules are policy statements, not primary or delegated legislation. They may be challenged in judicial review for irrationality or other unlawfulness. The Secretary of State must act compatibly with Convention rights under section 6(1) of the Human Rights Act 1998. The Rules bind immigration decision-makers, subject to more favourable policy and individual human-rights appeals.
3. Article 8. Following Quila v Secretary of State for the Home Department [2011] UKSC 45, exclusion of a foreign spouse is an interference with family life. British citizens have a fundamental right to reside in the United Kingdom without let or hindrance. Refugees are also in a distinctive position because they cannot reasonably be expected to live in their country of nationality.
4. Proportionality. The financial policy pursued legitimate aims, including economic welfare, integration and limiting burdens on public funds, and was rationally connected to them. However, the cumulative effect of five features was excessive: the threshold above the lower maintenance level; the £16,000 savings floor; the 30-month projection period; exclusion of reliable third-party undertakings; and exclusion of the spouse’s prospective earnings. Less intrusive alternatives were available, including a lower threshold, use of modest savings, consideration of reliable support and future earnings, and an initial 12-month review.
5. Children and residual discretion. Section 55 duties and Article 8 may require an individual decision-maker or appellate tribunal to consider a child’s best interests on the established facts. The generic challenge could not determine the outcome of individual cases. A narrow exceptional-circumstances policy did not cure the defect because the Rules were intended to be exhaustive, gave inadequate guidance, and imposed serious cost, delay and uncertainty.
6. The claims were not dismissed as meritless. The court left the Secretary of State to decide whether and how to amend the Rules.

First-instance judicial review proceedings. The judgment itself reviewed earlier decisions, including Quila v Secretary of State for the Home Department [2011] UKSC 45 and R (Bibi and others) v Secretary of State for the Home Department [2013] EWCA Civ 322.