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

Immigration Rules may be challenged in principle where they constitute an inherently disproportionate, unfair, arbitrary or unjustified interference with Convention rights. They need not guarantee compliance with Article 8 in every individual case, provided individual decisions can give effect to those rights. A minimum income requirement pursued legitimate aims connected with the economic well-being of the country and migrant integration. The Secretary of State was entitled to rely on rational policy judgment, research and consultation without irrefutable empirical proof. The financial threshold and associated exclusions were not inherently disproportionate or irrational. Indirect discrimination was justified. The duty under section 55 of the Borders, Citizenship and Immigration Act 2009 required regard to children’s welfare, but did not make their best interests determinative in every case.

Three judicial review claims challenged amendments to Appendix FM of the Immigration Rules introducing a minimum income requirement for sponsoring non-EEA partners. The claimants included British citizens and a refugee who could not satisfy the requirement. Blake J considered that the combined effect of several financial features was potentially a disproportionate interference with Article 8 rights, although he granted no declaration or quashing order. The Secretary of State appealed. The respondents relied additionally on Article 14, common-law irrationality, the statutory duty concerning children’s welfare, and provisions governing parents of children in the United Kingdom. The central issue was whether the Rules were unlawful in principle or could lawfully be applied through individual Article 8 assessments.

Lord Justice Aikens gave the judgment of the court, with Lord Justice Treacy and Lord Justice Maurice Kay agreeing.

1. Disposition. The Secretary of State’s three appeals were allowed. Paragraph 1 of Blake J’s order in each case was set aside. Permission for Mr Majid’s cross-appeal was refused. Costs were left for written submissions.
2. Legal framework. The Immigration Rules are statements of executive policy made under the Immigration Act 1971. At common law they must not be discriminatory, manifestly unjust, made in bad faith, or oppressively interfere with rights without reasonable justification. Under section 6(1) of the Human Rights Act 1998, the Secretary of State must operate the policy compatibly with Convention rights.
3. Facial challenge. The court applied the four-stage proportionality approach identified in Huang. A Rule which interferes with Article 8 must be capable of proportionate application. It is unlawful if the interference is inherently disproportionate, inherently unfair or incapable of justification. A Rule is not unlawful merely because an individual decision applying it may require a separate Article 8 assessment.
4. Minimum income requirement. The aims of protecting the economic well-being of the country, reducing burdens on public funds and promoting integration were legitimate. The Secretary of State was entitled to form a rational belief that the overall scheme would advance those aims. The court was not entitled to substitute its own view of the appropriate income level where the policy was based on extensive evidence, research and consultation. The £18,600 threshold, savings requirement, forward-income period, restrictions on third-party support and exclusion of the prospective migrant partner’s earnings were not inherently irrational, unjust or disproportionate. Mahad concerned construction of earlier Rules and did not decide the policy question whether third-party support should be excluded.
5. Discrimination and children. The accepted indirect discriminatory effects of the Rules were justified by the legitimate aims and a reasonable relationship of proportionality. Section 55 of the Borders, Citizenship and Immigration Act 2009 applied both when Rules were formulated and when individual decisions were made. The Rules demonstrated that regard had been given to children’s welfare, but section 55 was not a trump card and did not require children’s best interests to determine the validity of the scheme in the abstract. The distinction between parent and partner routes was rational and prevented evasion of the partner requirements.

• Court of Appeal (Civil Division): Appeals allowed; paragraph 1 of the High Court order set aside in each case. Permission for Mr Majid’s cross-appeal refused.
• High Court, Queen’s Bench Division: Blake J considered that the combined effect of specified financial requirements was potentially a disproportionate interference with Article 8 rights, but made no declaration and did not quash the Rules.