On 22 February 2017, the Supreme Court handed down its judgment for the case of MM and others v The Secretary of State for the Home Department  UKSC 10, as stated on our post on the same day. The headline media reports were that the minimum income threshold (MIT) of £18,600 applicable to partners introduced into the immigration rules through Annexe FM on 9 July 2012 had been upheld - implying a successful outcome for the government in its attempt to curtail migrant numbers through introduction of the MIT.
The decision of the Supreme Court ‘reopens’ an alternative avenue for those who are unable to satisfy the £18,600 threshold. From a legal perspective, the decision reasserts the difference between the immigration rules as stated by the government and implemented by in this case by entry clearance officers (ECO) or the Home Office and the Human Rights Act, which allows judicial interpretation of the laws and therefore potentially a more generous approach by the judiciary in a court of law, which had previously been the situation prior to 9 July 2012 – and is what the introduction of the MIT, perhaps unsurprisingly sought to remove.
The consequence of the MIT is that many families have been torn apart as they have been unable to meet the financial requirements as stipulated by Annex FM.
Further reading on this case at the Court of Appeal stage by us can be obtained by visiting an earlier news article at the following url: https://www.rlegal.com/news/decision-of-the-court-of-appeal-in-the-spouse-visa/
The Supreme Court judgement analysed the legal concepts behind the immigration rules and the Human Rights Act. The court makes clear that the immigration rules are statements of policy and in short, allow the government to lay down rules which pursue a legitimate aim – in this case reducing migrant numbers through the imposition of the MIT. What the rules fail to do is to adequately address Human Rights principles which have been laid down by both the judiciary in the UK and the Court of Human Rights in Strasbourg. The court found that the gap in the rules for those who do not meet the MIT were not adequately addressed by the governments introduction of the MIT through Annexe FM or its guidance notes.
The government’s position hitherto has been that it is not necessary for decision makers to make further enquiries of applicants who fail to meet the rules, as Annex FM is compliant with the principles of proportionality, as it has a mechanism for ECO’s to consider cases on an exceptional basis. The court ruled that this negates the point that the appellant system allows for the judiciary to form judgements about how an individual can satisfy the Human Rights Act– therefore this function cannot simply be ignored through Annexe FM and its claim to address principles of proportionality.
The Supreme Court’s judgement is that the government’s position through Annexe FM and its stated guidance are not adequate and that the Secretary of State for the Home Department needs to address how it will assess applications which do not meet the current immigration rules, but which have particular individual circumstances for example, applicants who can offer ‘third party’ support or who have children.
What this means is that there is a two-stage process for applicants through this route. An applicant who meets the MIT therefore should satisfy the rule. However, for those who do not, the applicant can introduce other evidence such as third party support from a relative or friend and or other evidence to show how his set of circumstances complies with the Human Rights Act.
RLegal immigration solicitors have many years of experience of assisting clients with partner type cases. We assist clients from all over the world and our office is located in central London
If you require legal assistance with an application for your partner to the UK please contact us by telephone on +44 20 7038 3980, sending us on an email to firstname.lastname@example.org or by completing our online submission form.