Wed, 22 Feb 2017
The Supreme Court, has today, 22 February 2017, handed down judgment in MM (Lebanon) and others v Secretary of State for the Home Department  UKSC 10 in which it allowed the appellants’ appeals (albeit not on every issue).
The case dealt with the Immigration Rules concerning entry clearance, first introduced in July 2012, which 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. rising to £22,400 with the first child and £2400 per child thereafter.
The issue has given rise to great public concern. The appellants have from the outset emphasised that the minimum income requirement and the harshness of the Rules has prevented the development of family lives and negatively affected many children who as a consequence have had to live separately from a parent with consequential stress, anxiety and related difficulties for them and their families.
The Supreme Court’s judgment provides a good measure of relief for the affected families.
In this long-running litigation, Mr Justice Blake, sitting in the Administrative Court in July 2013, substantially accepted the appellants’ arguments that in various respects the rules went too far and violated the right to family life. See his judgment at  EWHC 1900 Admin and a note on the case by clicking here.
A year later in July 2014, the Court of Appeal allowed the Secretary of State’s appeal: see judgment at  EWCA Civ 985.
The Children's Commissioner and the Joint Council for the Welfare of Immigrants (JCWI) as interveners jointly supported the appellants’ appeals in the Supreme Court which were heard in February 2016.
Manjit S. Gill QC, leading counsel for the lead appellant in MM (Lebanon), said: “This litigation has had a long and slow journey to the Supreme Court. In the meantime many families have suffered enormously and this judgment will be a great relief to many of them. The negative decisions which were made in the tribunals after the Court of Appeal’s ruling will now have to be re-considered in a great many cases.”
The Supreme Court’s decision
The Supreme Court accepted the appellants’ arguments that the rules and the Secretary of State's attempts by way of instructions or guidance to her staff to fill the gaps in those rules, concerning the best interests of children as a primary consideration, were unlawful. In this regard the Court noted the internationally accepted principle requiring primary consideration to be given to the best interests of affected children. It also noted that the Secretary of State accepted that the similar statutory duty in section 55 of the Borders Citizenship and Immigration Act 2009 applied to not only children in the UK but also affected children abroad. The Court held that it should be clear from the immigration rules themselves that the statutory duty has been taken properly into account and granted a declaration as such.
It was also found by the Court that although the rules concerning the minimum income requirement of £18,600 pa and the manner in which that requirement is to be satisfied were not in themselves unlawful under common law principles, the rules in many cases cause hardship to various categories of persons including women and ethnic minorities, and that the operation of the same restrictive approach outside the rules under the Human Rights Act is much more difficult to justify. The Court held that where a person fails to satisfy the requirements of the Rules he or she could still succeed under Article 8 of the European Convention on Human Rights if it would be a disproportionate interference with the right to family life to refuse leave. In assessing proportionality, an appellate tribunal is entitled to take into account a wide range of factors and ultimately it has to ask itself whether a fair balance has been struck between the public interest in ensuring that foreign spouses’ families have sufficient resources of their own and the obligation to respect their family lives. When making that assessment there is nothing to prevent a tribunal dealing with an appeal under Article 8 from judging for itself the reliability of any alternative sources of finance/earnings (third party support, offers of employment etc) in light of the evidence before it; and it would thus make little sense for the Secretary of State not to adopt this same approach when making the initial decision.
The Court further stated that, when assessing the issue under Article 8, the question is not whether there had been a near miss under the rules, but the weight to be given to any factors weighing against the policy reasons relied on by the Secretary of State to justify an extreme interference with family life. One such factor may be the extent to which the family would in practice be a burden on the State. The Court indicated that the guidance or indeed the rules themselves concerning the treatment of alternative sources of funding needed to be amended in order to reflect this. It has required the Secretary of State to make plain how she intends to do this and has made provision for a further hearing to deal with that issue, should it be necessary.
The court also accepted that, although it is generally hard to challenge rules as being inherently unlawful, the court would have held that the rules were based on a legally erroneous interpretation by the Secretary of State of the law as set out by the House of Lords in the leading case of Huang  UKHL 11, but for the Secretary of State’s belated correction of the position.
No5 Barristers’ Chambers will shortly be arranging seminars in London and Birmingham to consider the implications of this important decision.