In July 2012 the Immigration Rules ['the Rules'] were amended to establish new entry requirements for non-EU nationals to join their partners in the United Kingdom.
The amended rules imposed a Minimum Income Requirement of at least £18,600 per annum (plus additional sums for dependent children) to be satisfied by the sponsoring partner.
In 5 linked appeals the Supreme Court was asked to consider whether the Rules and the accompanying Guidance and Instructions were compatible with the European Convention on Human Rights, in particular the right to family life under article 8. One of the appellants was a child and argued that the Rules and Guidance failed to take into account the Secretary of State for the Home Department's duty under s.55 of the Borders, Citizenship and Immigration Act 2009 to have regard to and safeguard the needs of children when making decisions that affect them.
In its judgment, handed down today, the Supreme Court held that whilst the Minimum Income Requirement is acceptable in 'in principle', the Rules and the accompanying Guidance unlawfully failed to take proper account of the Secretary of State's duty under s.55 of the Borders, Citizenship and Immigration Act 2009. The Court held that the Home Office Instructions (which are used by immigration officers in deciding applications) require amendment to allow the consideration of alternative sources of funding when evaluating a claim under article 8 of the European Convention on Human Rights.
The Court held that whilst the Minimum Income Requirement "has caused, and will continue to cause significant hardship to many thousands of couples" this does not in itself render it unlawful.
The Court recognised that there are, "several types of family... upon whom the MIR ['Minimum Income Requirement'] will have a particularly harsh effect". The court gave the example of British citizens who have lived and worked abroad, married of formed stable relationships there who now wish to return home to the UK.
However, the Court held that the Minimum Income Requirement has a legitimate aim of ensuring that the couple have sufficient resources to play a full part in British life without recourse to public funds.
In respect of the s.55 duty, to consider and protect the needs of children in deciding these applications, the Court held that, whilst the Rules assert that it has been taken into account, nothing gives direct effect to it. Equally the Instructions failed to fill this gap. The Court held that the Rules and Instructions required amendment to bring them in line with the European Convention on Human Rights and declared that in their current form the Rules and Instructions are unlawful.
In respect of alternative sources of funding the Court held that the current instructions require revision to ensure that decisions are taken consistent with the Secretary of State's duties under the Human Rights Act. The Court indicated that it was a matter for the Secretary of State to consider whether this was better achieved through revision of the Rules.
If you would like advice regarding the implication of this judgment on the Minimum Income Requirement please don't hesitate to contact a member of our Immigration team.