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

Immigration Rules need not themselves guarantee compliance with Article 8 in every individual case. They are unlawful if their interference with Convention rights is inherently disproportionate or unjustified in all or nearly all cases. A challenge to their validity requires proportionality to be assessed in principle, giving appropriate weight to the Secretary of State’s responsibility for immigration policy and her consideration of evidence.

Minimum income requirements directed towards reducing dependence on public funds and promoting integration were lawful in principle. Their financial thresholds and restrictions on qualifying resources were rational and proportionate. Their indirect discriminatory effects were justified. The statutory duty concerning children applies when rules are formulated and individual decisions are made, but children’s best interests need not determine the outcome.

MM, a Lebanese national with refugee status, and Abdul Majid and Shabana Javed, British citizens of Pakistani origin, wished to live in the United Kingdom with their spouses, who lived abroad and lacked an independent right of entry. None could satisfy the minimum income requirements introduced into the Immigration Rules in July 2012. Those requirements generally demanded annual income of £18,600, with supplements for dependent children, and restricted reliance on savings, third-party support and the prospective earnings of an overseas spouse.

The three sponsors brought judicial review proceedings challenging the requirements in principle. Their assumed circumstances were accepted for the appeals, but no individual refusal under the new requirements was before the court. Blake J concluded that the combined financial restrictions disproportionately interfered with family life, although he granted no declaration and did not quash the Rules. He rejected the discrimination and children’s welfare challenges.

The Secretary of State appealed. AF, MM’s nephew, challenged the treatment of children’s interests. Mr Majid sought permission to cross-appeal concerning the exclusion of applicants eligible under the partner route from the less stringent parent route. The central question was whether the financial requirements were unlawful in principle under the Convention or domestic public law.

1. The Secretary of State’s appeals were unanimously allowed. Paragraph 1 of Blake J’s order in each case was set aside. Mr Majid’s application for permission to cross-appeal was refused. Treacy and Maurice Kay LJJ agreed with Aikens LJ’s reasoning.

2. Immigration Rules were statements of executive policy. They could be challenged at common law for discriminatory, manifestly unjust, bad-faith or unjustifiably oppressive provisions. Under section 6(1) of the Human Rights Act 1998, the Secretary of State also had to exercise her powers compatibly with Convention rights. The Rules were construed according to their natural meaning and need not themselves guarantee compliance in every case. An individual disproportionate application would not invalidate a rule. A rule would nevertheless be unlawful if it was incapable of proportionate application, or was disproportionate in all or nearly all cases.

3. The financial requirements significantly interfered with family life. Their justification required the proportionality questions in Huang v SSHD, [2007] 2 AC 167, to be considered in principle. A British citizen’s right to reside in the United Kingdom was personal and created no constitutional right to admission of an overseas spouse. Article 8 imposed no general obligation to accommodate a couple’s choice of matrimonial residence.

4. Reducing burdens on the taxpayer and promoting integration were legitimate and sufficiently important objectives. The thresholds and restrictions on qualifying resources were rationally connected to them. The Secretary of State required a rational belief in the policy’s effectiveness, rather than irrefutable empirical proof. The court assessed proportionality objectively while giving appropriate weight to the extensive research, consultation and ministerial judgment. The requirements represented the minimum necessary interference and a fair balance. The court could not replace the rationally chosen figures with its preferred policy.

5. The general exclusion of third-party funding and prospective overseas-spouse earnings was rational. Mahad and others v ECO, [2010] 1 WLR 48, concerned construction of earlier Rules and did not determine whether excluding third-party support was an unlawful policy. Refugees’ pre-flight family reunion remained governed by Part 11. Applying the partner requirements to post-flight families was logical.

6. The indirect discriminatory effects pursued legitimate aims and bore a reasonable relationship of proportionality to them. Differentiating thresholds for every affected group was impractical and inappropriate. Section 55 of the Borders, Citizenship and Immigration Act 2009 applied at rule-making and individual decision-making stages. The Rules provided a framework for considering children’s welfare, which was not determinative. Different parent and partner requirements reflected different family circumstances and legitimately prevented evasion of the partner route.

7. Whether the Rules and exceptional-circumstances guidance constituted a complete code was left open. Failures to assess proportionality in individual decisions could be challenged individually. In an observation unnecessary to the disposal, an additional preliminary arguable-case gateway to Article 8 consideration served no useful purpose. Costs submissions were invited.

• Court of Appeal (Civil Division): [2014] EWCA Civ 985 . Allowed the Secretary of State’s appeals in all three cases and set aside paragraph 1 of each High Court order. Refused Mr Majid permission to cross-appeal.
• High Court, Queen’s Bench Division: Blake J concluded that the combined financial restrictions disproportionately interfered with family life on the assumed facts. He did not quash the Rules or grant a declaration. He rejected the discrimination and children’s welfare challenges. No citation for his judgment was supplied.