43 Temple Row Barristers Appear in the Supreme Court to Challenge Minimum Income Visa Rules

43 Temple Row Barristers Appear in the Supreme Court to Challenge Minimum Income Visa Rules

 

Thursday 25 February 2016

Over the course of a three day hearing between 22-24 February 2016, a seven judge bench of the Supreme Court has considered the linked appeals in MM (Lebanon) and others v. Secretary of State for the Home Department and SS (Congo) v. Entry Clearance Officer, Nairobi.  A write up of the Court of Appeal’s judgment can be found here and the High Court here.

The appeals concerned the Home Office Minimum Income Rules which require a British citizen, a lawfully settled person or a refugee in the UK, to be earning an income of at least £18,600 per annum, rising to £22,400 with the first child and increasing by £2,400 per child thereafter, before being allowed to sponsor a non-EU national partner or spouse.  In order to demonstrate the £18,600 the Rules prevent the sponsor from relying on savings less than £16,000 or on promises of third party support or an offer of employment that the incoming spouse or partner may have secured.

It was argued that the £18,600 requirement was grossly excessive and unobtainable for the majority of the working population particularly given the restrictions on how it could be met.  Furthermore, the Appellants argued that the Minimum Income Rules disproportionally impacted those in low-income occupations, refugees, women and certain ethnic groups.  The Appellants submitted that the rules were inconsistent with the States’ statutory duty to have regard to the best interests of children and were incompatible with Article 8 of the European Convention on Human Rights (the right to respect for private and family life) and Article 14 (prohibition of discrimination) and that the rules set out by the Secretary of State amounted to significant breaches of individual’s rights which would in many cases last a lifetime.  The Home Office guidance on when to apply discretion in the favour of an applicant who did not meet the Minimum Income Rules was in itself unlawful because it imposed a series of thresholds and tests of exceptionality before it could be considered.

Both MM and SS are refugees.  Master AF is the nephew of MM, although they have a special father/son relationship.  Neither MM or SS are able to return to their home countries to enjoy a family life with their spouses because of a continuing risk to them there.  They argued in part that the Immigration Rules fail to draw this obvious and very important distinction between them and those who are able to enjoy family life elsewhere.  They also pointed out that the Minimum Income Rules were forcing British citizen sponsors out of the UK solely in order to live with their family members whose admission was otherwise barred as a result of not earning the required amounts.

The Supreme Court has reserved its decision and judgment is expected in a number of months.

Tony Muman appeared for the Appellants MM, Master AF and SS

Joseph Neville appeared with Mr Muman for the Appellants Master AF and SS

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