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

This appeal concerned the legality and proportionality of the Minimum Income Requirement (MIR) introduced into Appendix FM of the Immigration Rules (notably section E-ECP) which required sponsors to have a gross annual income of at least £18,600 (with specified child supplements) in order to sponsor non-EEA partners and children. The Supreme Court held that the MIR is, in principle, a legitimate immigration policy and is rationally connected to legitimate aims of avoiding burdens on public resources and facilitating integration. However the Court identified legal defects in (a) the Immigration Rules and associated explanatory material in so far as they asserted that the Secretary of State’s duties under section 55 of the Borders, Citizenship and Immigration Act 2009 (the duty to safeguard and promote the welfare of children in the UK) had already been taken into account; and (b) the Home Office Instructions and guidance to decision-makers which overstated the rarity or exceptionalism required before Article 8 human rights considerations could justify grant of entry outside the Rules, and which unduly restricted the proper consideration of the best interests of children and of reliable alternative sources of finance (including prospective earnings of the sponsored partner and third-party support). The Court restored the Upper Tribunal decision in SS (Congo) and allowed the appeals to the limited extent necessary to declare and remedy those defects.

Background and proceedings:

• In July 2012 Appendix FM (including section EC-P and section E-ECP) introduced the MIR for family route immigration. The MIR requires specified gross income levels (starting at £18,600) or specified savings to sponsor a non-EEA partner and dependants; prospective earnings of the entrant and promises of third-party support are generally excluded at the entry clearance stage. The appellant cases were judicial review challenges to the MIR and associated guidance on grounds of incompatibility with Articles 8, 12 and/or 14 of the European Convention on Human Rights, and on common law grounds. Four cases (MM, AF, AM, SJ) were challenges to the Rules; SS (Congo) was an individual appeal against refusal of entry clearance.
• At first instance Blake J found aspects of the Rules disproportionate in combination and partly unlawful; the Court of Appeal allowed the Secretary of State’s appeal in the test cases involving challenges to the Rules; the Court of Appeal allowed the Home Office in the entry-clearance appeal relating to SS but remitted to the Upper Tribunal. The Supreme Court heard the five appeals together.

Issues:

1. Whether the MIR and the Immigration Rules introducing it were incompatible with Article 8 (and Article 14) or unlawful at common law.
2. Whether the Home Office Instructions and guidance unlawfully constrained decision-makers from conducting full Article 8 and section 55 assessments, including consideration of the best interests of children and of alternative sources of finance (sponsored partner’s prospective earnings and third-party support).
3. The appropriate disposition in the individual appeal SS (Congo).

Reasoning and holdings:

• The Court held that a minimum income requirement is, in principle, a legitimate and rational policy choice designed to avoid dependency on public funds and to promote integration. The Migration Advisory Committee’s analysis provided a rational basis for the chosen thresholds.
• The Court emphasised that the Immigration Rules are the starting point for Article 8 assessments but do not and cannot form a closed code that excludes full merits-based Article 8 consideration at the decision or appeal stage. The Secretary of State’s explanatory material had misunderstood aspects of Huang but the rules themselves already allowed separate Article 8 consideration.
• The Court found the Rules and the Grounds of Compatibility statement wrongly asserted that section 55 duties were already taken into account; the Home Office Instructions set too high a threshold for ‘exceptional circumstances’ and gave an unduly narrow formulation of how to assess the best interests of children. The Instructions also unduly restricted consideration of reliable alternative sources of funds; while the Secretary of State could prioritise simplicity and verifiability in the Rules, decision-makers exercising duties under the Human Rights Act must be able to assess alternative funding where Article 8 requires a broader balancing exercise.
• On the facts of SS the Supreme Court restored the Upper Tribunal’s decision and granted entry clearance outside the Rules as the tribunal findings (including insurmountable obstacles to family life in the DRC) were not successfully challenged and a fair balance favoured admission.

Remedies and next steps: The Court dismissed the broader challenge to the Rules except to declare unlawfulness insofar as the Rules and explanatory material failed to give proper effect to section 55. The Court directed that questions of remedial amendment of instructions and any guidance be adjourned to allow the Secretary of State to propose corrections and invited written submissions before any further hearing.

Appeal allowed in part. The Supreme Court held that (i) the Minimum Income Requirement is in principle a legitimate and rational element of immigration policy, so the Rules introducing it are not in themselves unlawful; (ii) but the Rules and accompanying statements wrongly suggested that the Secretary of State had already satisfied and incorporated the section 55 duty (welfare of children), and the Home Office Instructions set an unduly restrictive approach to Article 8 assessments (notably requiring 'exceptional' or 'insurmountable' obstacles in a way incompatible with Article 8 and Jeunesse). Those aspects of the Rules and Instructions are unlawful and require revision; on the facts of SS (Congo) the tribunal’s decision allowing entry outside the Rules should be restored.

Appeals to the Supreme Court from decisions of the Court of Appeal: [2014] EWCA Civ 985 (challenge to the Rules) and [2015] EWCA Civ 387 (Entry Clearance Officer appeal). The Administrative Court (Blake J) had earlier given judgment at [2013] EWHC 1900 (Admin); some matters proceeded through the First-tier Tribunal and Upper Tribunal before reaching the Court of Appeal and then this Court.