Secretary of State for the Home Department v MS (Pakistan)

Minimum income requirements in the Immigration Rules pursue a legitimate aim and are acceptable in principle under Article 8. They are not a complete code. Failure to meet them does not automatically determine an application, and the decision-maker must consider whether leave should be granted outside the Rules, including the interests of children and other reliable financial resources. Where a tribunal’s proportionality assessment was dictated by an erroneous legal approach later rejected by appellate authority, the error is material if it is unsafe to predict the outcome under the correct law. The appropriate course is to allow the appeal and remit for fresh consideration.

Two entry-clearance appeals concerned spouses and a child whose applications failed to satisfy the minimum income requirements. The First-tier Tribunal allowed both appeals on Article 8 grounds, relying substantially on the judgment of Blake J in MM [2013] EWHC 1900 (Admin). The Upper Tribunal dismissed the Secretary of State’s appeals. Permission to appeal was stayed pending the Supreme Court’s decisions in the related minimum-income litigation, including R (MM (Lebanon) & ors.) v SSHD [2017] UKSC 10. The central issue was whether reliance on the earlier legal approach caused material errors requiring remittal.

Appeals allowed and remitted. The decisions of the First-tier Tribunal and Upper Tribunal involved material errors of law. Both cases were remitted to the Upper Tribunal for reconsideration, with directions on evidence and procedure.

1. The minimum income requirements pursue a legitimate aim and are acceptable in principle under Article 8. The Supreme Court had held in R (MM (Lebanon) & ors.) v SSHD [2017] UKSC 10 that hardship caused by the requirements did not make them unlawful. Failure to meet them did not automatically require refusal, because the requirements were not a complete code and the Secretary of State retained discretion outside the Rules. Separate consideration was required under section 55 of the Borders Citizenship and Immigration Act 2009, particularly where children were involved. Other reliable sources of income or finance could also be considered.
2. The FTT decisions were founded on Blake J’s approach in MM [2013] EWHC 1900 (Admin), which had treated the requirements as capable in principle of being incompatible with Article 8. That approach had been reversed by this court in MM [2014] EWCA Civ 985. It had dictated the entire proportionality exercise in both cases. The error was therefore highly material.
3. The court could not safely predict that the tribunals would have reached the same conclusions under the correct legal framework. It would be inappropriate to second-guess the required proportionality assessment. The exceptional outcome in SS (Congo) depended on unusual circumstances, including established obstacles to family life in the country of origin, prolonged delay and no realistic prospect of satisfying the requirements. It did not determine these appeals.
4. McCombe LJ noted obiter that fresh applications, particularly where an application had been made prematurely and compliance was likely shortly afterwards, might have avoided substantial cost, delay and uncertainty.

1. Court of Appeal (Civil Division) — appeals allowed under [2018] EWCA Civ 1776; both cases remitted to the Upper Tribunal.
2. Upper Tribunal (Immigration and Asylum Chamber) — dismissed the Secretary of State’s appeals from the First-tier Tribunal decisions.
3. First-tier Tribunal (Immigration and Asylum Chamber) — allowed the respondents’ appeals against the Entry Clearance Officer’s refusals on Article 8 grounds.