Supreme Court to hand down judgment in MM Case

[mkhan2525]

Finally one year later the Supreme Court will hand down the much awaited judgment in the MM minimum income requirement and related cases on Wednesday 22 February.

Lets hope the outcome is a good one for families.

https://www.supremecourt.uk/news/future-judgments.html

[secret.simon]

Good spot. At almost exactly a year between hearing and judgment, it is one of the longest pending cases in UK Supreme Court history (which of course only started in 2009).

Perhaps this thread may be more relevant in the Family Members immigration forum. May the mods consider moving it there?

[Obie]

With the mess they made of the English language, i do not expect much of the financial requirement.

[mkhan2525]

There are more reasons for the Court to either lower the income requirements or obolish it altogether because approximately 50% of the UK population does not meet the requirement and it can discriminate against women in particular. Compare that with the English language requirement, it can be achieved after spending some dedicated time learning the language although one should not be subject to passing an English test before they can live together in this country.

There are other positives that may come from the related cases such Agyarko on whether you have to satisfy the "insurmountable obsticles" test before a grant of leave outside the immigration rules can be granted under Appendix FM EX1b.

[Obie]

I personally can't see that happening. They are very reluctant to strike down the rules entirely. We will see. I suppose no harm in being optimistic.

[matt1020]

Thanks for posting this – I was unaware that they would be making a decision about this case this week. If they reduced the minimum level of the financial requirement it could make a big difference to us when we apply to get my spouse's visa renewed in August. Will any ruling made by the Supreme Court be applied immediately, or is there a period of time before it comes into law?

[Obie]

As predicted, the Supreme Court Uphold the 18600 rule.

I shall update the forum on the full judgement as and when it becomes available.

REASONS FOR THE JUDGMENT
Challenge to the validity of the Rules under the Human Rights Act 1998 (‘HRA’)
 The Secretary of State is bound by s 6 HRA to exercise her powers under the Immigration Act
1971 compatibly with the ECHR. In a challenge to the legality of the Rules as such, as well as to
their application to individual cases, it is legitimate to follow the four stage proportionality test to
decide whether the Secretary of State has struck a fair balance between the individual and public
interests, taking into account the relevant factors identified by the European Court of Human
Rights (ECtHR) and the significant weight to be given to the interests of children [52, 56].
 The general provisions of the Rules envisage a two-stage process, the second involving a fact sensitive
consideration of any human rights issues outside the Rules. The duty of the tribunal
hearing appeals against any adverse decision of the Secretary of State is to ensure that the ultimate
disposal of the application is consistent with the ECHR. This means that there is no basis for
challenging the new Rules as such under the HRA [58, 60].
The principle of an MIR
 The fact that the MIR may cause hardship to many does not render it unlawful [81]. It has the
legitimate aim of ensuring that the couple do not have recourse to welfare benefits and have
sufficient resources to play a full part in British life. The income threshold chosen was rationally
connected to this aim [83] and the acceptability in principle of an MIR has been confirmed by the
ECtHR [86].
Treatment of children
 The Rules assert that the Secretary of State’s s 55 duty has been taken into account but nothing in
the relevant section gives direct effect to it [90]. The Instructions in their current form do not
adequately fill the gap left by the Rules. They are defective and need to be amended in line with the
principles established by the ECtHR. The s 55 duty stands on its own and it should be clear from
the Rules themselves that it has been taken into account. In this respect the Supreme Court grants
a declaration that the Rules and the Instructions are unlawful [92].
Treatment of alternative sources of funding
 There are restrictions in the Rules on taking into account the prospective earnings of the foreign
spouse or partner or guarantees of third party support when deciding whether the MIR has been
met. Although harsh, it is not irrational for the Secretary of State to give priority in the Rules to
simplicity of operation and ease of verification [98]. Operation of the same restrictive approach
outside the Rules is a different matter and inconsistent with the evaluative exercise required by
article 8. A tribunal on an appeal can judge for itself the reliability of any alternative sources of
finance and it makes little sense for decision-makers at an earlier stage to be forced to take a
narrower approach [98]. In this respect aspects of the Instructions require revision to ensure that
decisions are taken consistent with the duties under the HRA. It will be a matter for the Secretary
of State to decide if it is more efficient to revise the Rules themselves to achieve this [101].
Appeal by SS
 In the light of the crucial finding by the tribunal that there were insurmountable obstacles to the
couple living together in DRC, any errors in the tribunal’s judgment did not after this long delay
require the appeal to be remitted for rehearing. Applying the correct test, the extreme interference
with family life would not be found to be justified on the facts of SS’s case [106]

[secret.simon]

Press summary and judgment.

MIR and specific income threshold of £18,600 found lawful.

However, rules regarding treatment of children and of alternative sources of funding will need to rewritten.

Now that MIR has been found lawful by the Supreme Court, it is not improbable that the government may increase it while rewriting the Rules.

[vinny]

Judgment.

[mkhan2525]

Press summary and judgment.

MIR and specific income threshold of £18,600 found lawful.

However, rules regarding treatment of children and of alternative sources of funding will need to rewritten.

Now that MIR has been found lawful by the Supreme Court, it is not improbable that the government may increase it while rewriting the Rules.

It is unlikely they would further increase MIR as that would in effect amount to an outright ban on bringing a non-EU spouse to this country.

The reason MIR at £18,600 was accepted by the court and not struck down or reduced was the fact that it is the amount where both couples cease to qualify for any benefits therefore the government has met their legitimate aim of protecting the tax payers money.

The challenge to the MIR also failed on the fact that the ECJ Court dealt with a case years ago concerning The Netherlands where they did not oppose the MIR requirement.

Nevertheless there are some positives from this judgement for those couples with children.

[matt1020]

Today’s ruling doesn’t come as a surprise but it’s disappointing for all those of us who were hoping for a bit of a break. There are a couple of facts I find confusing about how the MIR is calculated – maybe someone would like to clarify or speculate on these?

Firstly, the first £16,000 in savings is disregarded because ‘it is the cut-off point above which a person would no longer be entitled to benefits’. On my spouse’s visa it states clearly that she has no recourse to public funds. If I suddenly found myself out of work and I made a claim for JSA, or some other benefit, we would be assessed as a couple and hence ‘we’ would not be entitled to any benefits. As couples in our position are not entitled to receive any benefits, I don’t understand why the financial requirement for savings isn’t simply £46,500 (i.e £18,600 x 2.5).

Secondly, the MIR makes no consideration of a person’s outgoings. It’s quite feasible that a higher earner who can meet the MIR also has higher outgoings and other debts, so that their net income is significantly lower than someone who cannot meet the MIR. For example, my income is only just above the £18,600 threshold but I own my home out right. If I had to rent a property or pay a mortgage, the minimum I would pay in this area would be in the region of £500-600/month. There’s £6,000-7,000 a year straightaway that I don’t need to pay out.

I understand from the judgement that other sources will be considered when they review the MIR, but as the government has effectively won this case, I can’t imagine this will be happening any time soon. I’m not sure what the timeframe is for the implementation of new legislation but I envisage it will be in the region of months/years – by which time my wife will already be a UK citizen, or we’ll have given up and left the country!

[Obie]

I must say that having had time to peruse the Judgement. I must say it is better than I thought it will be.

The court was reluctant to strike down the MIR, but some of the appellants indeed received remedy.

The Court State that potential earning of a spouse or their overseas earning, provided it is verifiable could in principle, be taken into account.

It makes provision for consideration to be given to children joining their parents who are present and settled in the UK. That Section 55 applies to overseas children, meaning that the scope of Exception 1, May be extended.

These are all positive aspect of the ruling, which one must acknowledge.

I would have preferred from the 18,600 threshold to be killed and buried, but one should be content to an extent, that the judgement provides something to work on.

[vinny]

Supreme Court upholds Minimum Income Rule of £18,600 to sponsor foreign spouses.
Article 8 and MIR: Appendix FM in Supreme Court

[357mag]

Its a pity the MIR has not be challenged on behalf of pensioners. There is no way someone on just a state pension can meet the requirement. The level at which such a person no longer qualifies for state benefits is not relevant to a pensioner.

[Obie]

The Court ruled in favour of Children and Section 55, and possibility of Alternative funding.

This potentially extend the scope beyond simply the spouse, but the employment of the non-EEA in a non-EEA country may be considered, as well as offer of financial support from family members.

The Home Office has been given opportunity to change rules and guidance. e await to see the changes and their effect.

[mkhan2525]

Essentially the Supreme Court has opened up a loop hole with this judgment. If you don't meet MIR, have kids and then you can be granted entry clearance or leave to remain outside the rules.

Whilst it is welcome the best interest of children will be protected, the rules are vulnerable to exploitation.

This is going to be a tough one for HO since the main aim of the rules was to lower net migration. I hope they seriously think about the judgement as a whole and the damage the rules have caused to British Citizens.

[vinny]

Home Office makes changes to Appendix FM Minimum Income Rule following MM case > Statement of changes to the Immigration Rules: HC290, 20 July 2017.

[mkhan2525]

http://www.independent.co.uk/news/uk/po ... 63376.html

[357mag]

https://www.gov.uk/government/uploads/s ... ssible.pdf

21A(1). Where paragraph GEN.3.1.(1) of Appendix FM applies, the decision-maker is required to take into account the sources of income, financial support or funds specified in sub-paragraph (2).
(2) Subject to sub-paragraphs (3) to (8), the following sources of income, financial support or funds will be taken into account (in addition to those set out in, as appropriate, paragraph E-ECP.3.2., E-LTRP.3.2., E-ECC.2.2. or E-LTRC.2.2. of Appendix FM):
(a) a credible guarantee of sustainable financial support to the applicant or their partner from a third party;
(b) credible prospective earnings from the sustainable employment or self-employment of the applicant or their partner; or
(c) any other credible and reliable source of income or funds for the applicant or their partner, which is available to them at the date of application or which will become available to them during the period of limited leave applied for.

Seems a major change in that it seems to allow non UK partners future earnings to be taken into account. Well if you are married, a fiancé or in married partner wont be allowed to work.
My state pension is only circa £8k but partner has job offers of over £18k if I could only bring her over, pity she cant work unless we can get married before she comes here.
Maybe I'm reading the statement wrong and it could be only in special circumstances and at the discretion of UKVI?

[Simakhan]

any update on the judgement?

There are more reasons for the Court to either lower the income requirements or obolish it altogether because approximately 50% of the UK population does not meet the requirement and it can discriminate against women in particular. Compare that with the English language requirement, it can be achieved after spending some dedicated time learning the language although one should not be subject to passing an English test before they can live together in this country.

There are other positives that may come from the related cases such Agyarko on whether you have to satisfy the "insurmountable obsticles" test before a grant of leave outside the immigration rules can be granted under Appendix FM EX1b.

[MikeSpring]

Dear all

I want to share with you a very useful article I found about post MM Lebanon changes to the Appendix FM Minimum Financial Requirement at 3rd Party weblink removed by moderator

This article really helped my wife and me as we were struggling to meet the requirement, we had to rely on my parents guarantee and my future potential income.

We submitted the application and hope that she will get discretionary leave.