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

A minimum income requirement for family migration is lawful in principle where it rationally advances legitimate immigration and economic aims. A facial challenge to an immigration rule ordinarily fails if the rule can be operated proportionately through a full, fact-sensitive assessment outside the rules.

Decision-makers must nevertheless treat affected children’s best interests as a primary consideration under Borders, Citizenship and Immigration Act 2009 section 55. Guidance imposing a narrower, highly prescriptive standard is unlawful. An article 8 assessment outside the rules must also permit consideration of reliable prospective earnings and third-party support. Such resources may be excluded from the rules for administrative simplicity, but cannot be excluded from the overall fair-balance assessment.

The appeals concerned the minimum income requirement in Appendix FM to the Immigration Rules. Four appellants brought judicial review claims challenging the requirement as contrary to articles 8, 12 and 14 of the European Convention on Human Rights, section 55 of the Borders, Citizenship and Immigration Act 2009, and common-law principles.

Blake J declined to strike down the rules but found aspects of their combined operation disproportionate: [2013] EWHC 1900 (Admin); [2014] 1 WLR 2306. The Court of Appeal allowed the Secretary of State’s appeal: [2014] EWCA Civ 985; [2015] 1 WLR 1073.

The fifth appellant, SS, had been refused entry clearance for failure to meet the income threshold. The First-tier Tribunal allowed her appeal under article 8 and the Upper Tribunal upheld that result. The Court of Appeal allowed the Entry Clearance Officer’s appeal and remitted the case: [2015] EWCA Civ 387; [2016] 1 All ER 706.

The central questions were whether the minimum income requirement was lawful in principle, whether the rules and guidance properly protected children, and whether an assessment outside the rules could exclude prospective earnings and third-party support.

All seven members of the court, in a joint judgment delivered by Lady Hale and Lord Carnwath, allowed the appeals to a limited extent.

1. The minimum income requirement was lawful in principle. It pursued legitimate aims of avoiding dependence on public resources and promoting integration. The threshold was rationally connected to those aims and rested on the economically rational work of the Migration Advisory Committee. Hardship, including disproportionate effects upon women and some ethnic groups, did not make the rule inherently unlawful (paras 80–87).

2. A challenge to the rules as such under the Human Rights Act 1998 failed because the rules formed only the first stage of decision-making. Failure to satisfy them was the beginning, not the end, of article 8 consideration. Decision-makers and tribunals remained obliged to conduct a full, fact-sensitive assessment outside the rules. A rule could be struck down only if it was incapable of proportionate operation and inherently unjustified in all or nearly all cases. The Government’s earlier interpretation of Huang v Secretary of State for the Home Department was legally mistaken because article 8 could not be reduced to a rigid template (paras 52–68).

3. The rules and guidance were unlawful in their treatment of children. Section 55 of the Borders, Citizenship and Immigration Act 2009 imposed a freestanding duty which applied to making the Immigration Rules as well as deciding individual cases. The guidance failed to treat children’s best interests as a primary consideration and instead imposed an unduly stringent criterion requiring needs which could only be alleviated by the applicant’s presence. A declaration was granted accordingly (paras 88–92, 109).

4. The exclusion of prospective earnings and third-party support from the rules was not irrational. Simplicity, verification and administrative practicality could justify that policy choice. The same categorical exclusion could not govern the article 8 assessment outside the rules. Decision-makers and tribunals had to consider reliable alternative sources of finance where relevant to the required fair balance, although the Secretary of State could prescribe criteria for assessing reliability (paras 93–101).

5. In SS’s appeal, the unchallenged finding of insurmountable obstacles to family life in the Democratic Republic of Congo, together with the sponsor’s substantial United Kingdom ties and the absence of adverse immigration-control or public-order factors, supported the tribunal’s conclusion. Its errors were immaterial. The Upper Tribunal’s decision was restored (paras 102–108).

The question of further remedies and the amendment of the guidance was adjourned for written submissions (para 110).

1. United Kingdom Supreme Court: The appeals were allowed to a limited extent. The court declared the rules unlawful insofar as they failed to give effect to section 55 of the Borders, Citizenship and Immigration Act 2009, required revision of the guidance, and restored the Upper Tribunal’s decision in SS: [2017] UKSC 10.
2. Court of Appeal: In SS, the Entry Clearance Officer’s appeal was allowed and the case was remitted to the Upper Tribunal: [2015] EWCA Civ 387; [2016] 1 All ER 706.
3. Court of Appeal: In the judicial review proceedings, the Secretary of State’s appeal was allowed and the challenges to the minimum income requirement were rejected: [2014] EWCA Civ 985; [2015] 1 WLR 1073.
4. Administrative Court: Blake J declined to strike down the rules but held that combinations of specified features could impose a disproportionate interference upon British citizens and refugees: [2013] EWHC 1900 (Admin); [2014] 1 WLR 2306.
5. First-tier and Upper Tribunals: SS’s article 8 appeal was allowed by the First-tier Tribunal. The Upper Tribunal dismissed the Entry Clearance Officer’s appeal.