The High Court’s decision in MM, Javed and Majid v Secretary of State [2013] EWHC 1900 Admin has today dealt another blow to the Home Secretary’s controversial rules on family migration. The rules in question require that, before British nationals or other persons lawfully settled in the UK can sponsor a foreign spouse (or partner, including a same-sex partner) from outside of the European Economic Area, they must show that the sponsoring spouse in the UK has an income of at least £18,600 p.a. with additional sums for each child. MM is a refugee lawfully in the UK. Mrs Javed and Mr Majid are British Citizens. Mr Justice Blake ruled that, at least in the cases of sponsors who are British citizens or refugees, the current rules amount to an even greater interference with their rights to family life than was caused by earlier rules which had prevented persons settled in the UK from living in the UK with a spouse or partner from a non-EEA country unless both parties were over 21 years old. The Supreme Court ruled in 2011 that those ‘age 21 rules’ were a ‘colossal’ interference with family life and it would be difficult to see how they could ever be applied compatibly with the right to family life.

The High Court has now held that the £18,600 per annum income threshold rule is also a grossly disproportionate interference with the right of the affected persons to live their family life in the UK. The court considered (see paragraph 124 of its judgment) the following points to be particularly important:
•       Whereas, under the previous rules, it was only necessary to show that the couple in question would be able to support themselves without recourse to public funds (a rule which still remains), and that they would be able to maintain themselves at just above the subsistence levels paid to those on benefits, the new rules impose an unreasonably high threshold of £18,600 p.a. The claimants’ expert statistical evidence showed that people in a high proportion of jobs in the UK simply do not earn such sums. The threshold of £18,600 is far higher than even the national minimum wage set by the government of about £13,000.
•       Although the rules contain a formula for permitting savings to be taken into account where there is a shortfall from the required annual income of 18,600, the rules perversely require such an extremely high level of personal savings as to make it extremely difficult for many ordinary people to satisfy the rules. There will of course be no additional burden on the welfare benefits caused by the arrival of the foreign spouse as the rules in addition continue to provide that the arrival of the foreign partner will not in any event give rise to any right to claim any additional benefits.
•       The rules perversely fail to permit affected persons to use the financial support, which can reliably be provided to them from others such as relatives or friends in order to meet any shortfall from the £18,600.
•       The rules perversely fail to take into account the prospective income of the foreign spouse or partner even if there is good reliable evidence that on arrival the foreign spouse will have a job will take the combined annual income above the figure of £18,600.
•       The rules unreasonably seek to project ahead for a period of 2 ½ years during which there should be no shortfall from the £18,600 when a shorter period of 12 months could be applied in borderline cases.  

Although the court did not strike down the rules as such, its declaratory judgment is a green light to foreign spouses who previously thought they had no prospect of being allowed to live together with their spouses in the UK to apply for permission to enter. After this judgment, many are likely to succeed in being allowed to enter under Art 8 of the European Convention on Human Rights even though they cannot satisfy the harsh requirements of the rules especially if, for example, the UK sponsoring spouse earns above the national minimum wage, there is reliable ‘third party support’, there is reliable evidence that the foreign spouse or partner will be working in the UK, or where children are likely to be affected so that is not in their best interests for the foreign spouse to be refused entry.

Manjit Gill QC, leading counsel for claimants said: “The plight of persons affected by the rules has rightly received publicity. The judgment will be a welcome relief to such persons. The rules have forced significant numbers of British people to go and live in Europe for a reasonable period for time, in exercise of their rights as EU Citizens, before they lawfully come back months later with their spouses under EU law. In other cases, the rules have forced such persons out of the UK and out of Europe altogether, even though they have been lawfully settled in the UK for many years. This is the price in terms of family life that has had to be paid. The impact on young people, part-time workers and women, particularly those from a racial minority background, who are more likely to be in low-paid jobs, has been particularly severe.” 

The income threshold rules have received criticism from other quarters too. Last month, the All-Party Parliamentary Group on Migration issued a report which concluded that the rules were disproportionate.
Permission to appeal was granted and the matter is likely to proceed to the Court of Appeal. In the meantime, the Secretary of State will have to consider how to implement the judgment. 

Manjit S. Gill QCRamby de Mello and Danny Bazini of No5 Chambers appeared for the Claimants