Thousands will continue to be barred from entry to the UK following the Supreme Court’s Ruling in MM Lebanon and Others v SSHD [2017] UKSC 10. When it comes to the welfare of children however, the rules and instructions behind the threshold requirement have been found to be unlawful.

The Problem

The current system was introduced in July 2012 when the Home Office was headed by now Prime Minister Theresa May. Under Section E-ECP of the Immigration Rules there is a minimum gross annual income requirement, which is set at £18,600, for a UK sponsor who wishes for their foreign partner to join them in the UK. The minimum income requirement (MIR) reflects the income at which a British family generally ceases to be able to access income-related benefits. On top of the £18,600 minimum threshold, a Briton must earn an additional £3,800 for any first dependent child and £2,400 for each further child. Alternatively the couple are required to have substantial savings, namely £16,000 plus two and a half times the shortfall in the sponsor’s earnings. Estimates differ as to the proportion of the adult population that can meet the rules but it is clear that a substantial number can not, particularly those with children.

The current system has accordingly resulted in thousands of “Skype Families.” Skype Families is a term which was coined by the Children’s Commissioner in 2015[1] and is used when describing for example the significant number of British children who can only communicate with one of their parents through Skype. Many of the children interviewed for the commissioner’s research were reported to suffer from stress and anxiety which affected their well being and development.

The Judgment of the Supreme Court

The decision in MM (Lebanon) and Others v SSHD [2017] UKSC 10 has produced in effect two key results. Firstly, the MIR has been found to be lawful and not incompatible with convention rights or other common law. Secondly, whilst the first result may be a huge blow to many, it has now also been also been found that the rules fail unlawfully to give effect to the duty of the Secretary of State in respect of the welfare of children under section 55 of the Borders, Citizenship and Immigration Act 2009.

To assist our readers further, we have already extracted below the key paragraphs on these two points from the forty page judgment of Lady Hale and Lord Carnwath.

1. The MIR is lawful

“There can be no doubt that the MIR has caused, and will continue to cause,

significant hardship to many thousands of couples who have good reasons for

wanting to make their lives together in this country, and to their children. There are

several types of family, not illustrated in the cases before us, upon whom the MIR

will have a particularly harsh effect. These include British citizens who have been

living and working abroad, have married or formed stable relationships there, and

now wish to return to their home country. Many of these relationships will have been formed before the new Rules were introduced or even publicly proposed (para 80)…….…But the fact that a rule causes hardship to many, including some who are in no way to blame for the situation in which they now find themselves, does not mean that it is incompatible with the Convention rights or otherwise unlawful at common law (para 81).” 

“The MIR is part of an overall strategy aimed at reducing net migration. Its particular aims are no doubt entirely legitimate: to ensure, so far as practicable, that the couple do not have recourse to welfare benefits and have sufficient resources to be able to play a full part in British life. As accepted by the courts below, those aims are sufficient to justify the interference with, or lack of respect for, the article 8 right (para 82)………….…. We conclude that the challenge to the acceptability in principle of the MIR must fail (para 87).”

 2.  The Rules fail unlawfully to give effect to the duty of the Secretary of State in respect of the welfare of children under section 55 of the Borders, Citizenship and Immigration Act 2009. 

“ In our view the instructions in their present form do not adequately fill the gap left by the rules. Rather than treating the best interests of children as a primary consideration, taking account of the factors summarised in Jeunesse, they lay down a highly prescriptive criterion requiring “factors … that can only be alleviated by the presence of the applicant in the UK”, such as support during a major medical procedure, or “prevention of abandonment where there is no other family member …”. It seems doubtful that even the applicant in Jeunesse itself would have satisfied such a stringent test. Furthermore, although section 55 is in terms directed to children in the UK, the Secretary of State has accepted that the same approach should be applied to the welfare of children elsewhere (para 91).” 

“We have no doubt therefore that the guidance is defective in this respect and needs to be amended in line with principles stated by the Strasbourg court. Furthermore, the statement in GEN.1.1 that the duty has already been taken into account in the rules is wrong in law. Nor is the gap filled by GEN.1.10-11 which refer to the separate consideration under article 8, but not section 55. This is not simply a defect of form, nor a gap which can be adequately filled by the instructions. The duty imposed by section 55 of the 2009 Act stands on its own feet as a statutory requirement apart from the HRA or the Convention. It applies to the performance of any of Secretary of State’s functions including the making of the rules. While the detailed guidance may be given by instructions, it should be clear from the rules themselves that the statutory duty has been properly taken into account. We would grant a declaration that in this respect both the rules and the instructions are unlawful (para 92).” 

“We would also declare that the rules fail unlawfully to give effect to the duty of the Secretary of State in respect of the welfare of children under section 55 of the 2009 Act. (para 109).” 

To read the full judgment in MM (Lebanon) and others v SSHD [2017] UKSC 10, which has handed down on the 22nd February 2017, click here.

What Now?

The MIR is therefore lawful and continues to stand however, the Home Office will need to carefully consider what the Supreme Court has said in relation to exceptional cases where the income threshold has not been met, particularly in those cases involving children. The rules and guidance are therefore defective and unlawful in cases involving children until they are amended to give more weight to the interests of the children involved. Whilst the ruling is a blow to many British families who have faced a choice of seperation or living in exile, there is comfort to be found in the Supreme Court’s findings that the requirement has caused hardship to thousands of families and that the interests of children need to be reconsidered.

If you or a client of your own requires advice or representation in a matter concerning the MIR or any other immigration matter, please feel free to contact Chambers and enlist the assistance of our specialist Immigration Team.

The author of this article, Manisha Marwaha, is a specialist Immigration and Family Practitioner at KBW Chambers.

The contents of this article should not be relied upon in isolation, treated as legal advice or as a substitute for legal advice.

[1] https://www.childrenscommissioner.gov.uk/news/skype-families