R (on the applications of MM (Lebanon) & Ors) v Secretary of State and another [2017] UKSC 10

The Supreme Court considered challenges to the Minimum Income Requirement in the Immigration Rules, requiring UK sponsors to earn at least £18,600 to bring non-EEA partners into the UK. The Court upheld the MIR in principle but found the rules and guidance unlawful regarding children's welfare and alternative funding sources.

Facts

In July 2012, the Home Secretary introduced Appendix FM to the Immigration Rules, imposing a new Minimum Income Requirement (MIR) on British citizens and settled persons (including refugees) wishing to sponsor non-EEA partners to enter or remain in the UK. The MIR required a sponsor’s gross annual income of at least £18,600, rising to £22,400 for a partner and one child, with further sums for additional children. Only the sponsor’s income could be counted; the migrant partner’s prospective earnings and third-party support were excluded. Substantial savings (£62,500) could be used as an alternative.

Five cases were heard together. MM, a Lebanese refugee, earned around £15,600 and could not bring his wife despite family promises of support. AF, MM’s nephew, claimed his welfare was affected. AM, a long-resident British citizen dependent on benefits, sought to bring his wife from Kashmir. SJ, a British citizen of Pakistani heritage, could not meet the MIR to bring her Pakistani husband. SS (Congo) successfully appealed entry clearance refusal at tribunal level, where insurmountable obstacles to family life in the DRC were found.

Issues

The principal issues were: (1) whether the MIR in the Immigration Rules was incompatible with Articles 8, 12 and 14 ECHR or was otherwise unlawful at common law; (2) whether the Rules and accompanying Instructions adequately reflected the Secretary of State’s duty under section 55 of the Borders, Citizenship and Immigration Act 2009 to safeguard and promote the welfare of children; and (3) whether the exclusion of prospective earnings of the migrant partner and third-party support was lawful.

Arguments

The appellants argued that the MIR caused permanent separation for many couples, disproportionately affected women, certain ethnic groups, and those in lower-paid regions, and constituted an unjustified interference with Article 8 rights. They contended the Instructions’ “exceptional circumstances” threshold was too restrictive, that the welfare of children was inadequately addressed, and that excluding third-party support was irrational, particularly given Mahad v Entry Clearance Officer [2009] UKSC 16.

The Secretary of State argued the MIR was rationally connected to the legitimate aims of safeguarding economic well-being and ensuring integration, was supported by the independent Migration Advisory Committee’s analysis, and accepted that decisions outside the Rules must be compatible with section 6 HRA. She maintained that fairness and consistency justified the prescriptive approach.

Judgment

The Court (Lady Hale and Lord Carnwath delivering the joint judgment, with which the other Justices agreed) held:

Acceptability of the MIR in principle

The MIR’s aims were legitimate and rationally connected to those aims. The Migration Advisory Committee’s analysis was a “model of economic rationality”. The Strasbourg decision in Konstatinov v Netherlands confirmed that minimum income requirements were in principle acceptable. The challenge to the Rules’ validity as such failed.

Misunderstanding of Huang

The Court considered the Secretary of State’s 2012 “Grounds of Compatibility” statement reflected a distorted understanding of Huang v Secretary of State [2007] UKHL 11. Huang concerned the tribunal’s role under appellate legislation, not a relationship between executive and courts, and did not preclude Article 8 considerations beyond the Rules. The Rules themselves could not constitute a “complete code” and remained the starting point, not the determinant, of Article 8 assessment.

Children

The Court held that the Rules and Instructions failed to give proper effect to section 55. The Instructions imposed a highly prescriptive criterion requiring factors that “can only be alleviated by the presence of the applicant in the UK”, which would not even have satisfied the applicant in Jeunesse v Netherlands. The duty under section 55 stands on its own feet, separate from the HRA, and must be apparent on the face of the Rules. A declaration that the Rules and Instructions were unlawful in this respect was granted.

Alternative sources of funding

While exclusion of prospective earnings and third-party support in the Rules was not irrational at common law (being justified by practicality and ease of verification), maintaining the same restrictive approach outside the Rules was inconsistent with Article 8. The tribunal on appeal must be free to evaluate the reliability of alternative funding sources, drawing on the approach in Mahad. The Instructions required revision.

SS (Congo)

The Upper Tribunal’s decision was restored. Although the First-tier Tribunal had erroneously relied on Blake J’s £13,400 figure, the unchallenged finding of insurmountable obstacles to family life in the DRC, combined with the Jeunesse factors (long residence of sponsor, British citizen children, no public order concerns), meant any error was immaterial.

Implications

The judgment confirms that immigration rules engaging Article 8 must be capable of being operated compatibly with Convention rights, but they are not themselves required to guarantee such compatibility provided decision-makers retain a residual discretion to grant leave outside the Rules. The Rules form only the starting point of consideration, with a fuller Article 8 assessment available outside them.

The decision establishes that section 55 imposes a free-standing statutory duty that must be reflected in the Rules themselves, not merely in subordinate guidance. It also limits how restrictively the Secretary of State may treat alternative funding sources when full Article 8 consideration is required, while permitting prescriptive treatment within the Rules.

The judgment is significant for couples and families separated by the MIR, particularly those where the migrant partner has good earning prospects, where third-party support is available, or where children’s welfare is engaged. It reinforces the partnership between the executive and the tribunals in achieving fair and consistent decision-making, while acknowledging the considerable weight to be given to policy choices in matters within the Secretary of State’s expertise. The Court adjourned remedies to allow the Secretary of State to revise the Instructions.

Verdict: Appeals allowed to a limited extent. The Supreme Court upheld the Minimum Income Requirement in principle as lawful and rationally connected to legitimate aims. However, it declared that the Rules and Instructions unlawfully failed to give effect to the Secretary of State’s duty under section 55 of the Borders, Citizenship and Immigration Act 2009 regarding the welfare of children, and that the Instructions required revision concerning the treatment of alternative sources of funding to ensure consistency with Article 8 ECHR. In SS (Congo), the Upper Tribunal’s decision in favour of the applicant was restored. The question of remedies was adjourned to allow the Secretary of State to propose amendments.

Source: R (on the applications of MM (Lebanon) & Ors) v Secretary of State and another [2017] UKSC 10