Can anyone predict a break-up? Supreme Court appeal in MM v SSHD to be heard on 22 – 24 February 2016 banner


Can anyone predict a break-up? Supreme Court appeal in MM v SSHD to be heard on 22 – 24 February 2016

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The 22-24th February 2016 has been announced as the date the Supreme Court will hear the highly controversial case of MM and others v Secretary of State for the Home Department. Whatever the Supreme Court rules, the ramifications for spouses, civil partners, unmarried and migrant families as a whole will be far-reaching and long-lasting.

The issues surrounding the ‘minimum income threshold’ have led to fierce debates in legal, political and Human Rights circles. The question on the threshold the learned Supreme Court Judges will have to answer can be put as succinctly as this; “do the maintenance funds requirements, introduced for spouse/partner visa in July 2012, breach the UK’s obligations under the European Convention on Human Rights, specifically those rights set out under Article 8 pertaining to the right to family life.”

In anticipation of what will be one of the most important Immigration decisions in UK history, here is a brief consolidation of the case so far.

The Facts of the Case

MM and others v Secretary of State for the Home Department concerns two British citizens, Mr Abdul Majid and Ms Shabana Javed, who have the "right of abode" in the United Kingdom and Mr MM, who has refugee status and as such has the right to remain in the UK. All three are married to spouses who do not have the "right of abode", who are not citizens of a European Economic Area (EEA) state and who currently live outside the UK and wish to come and live with their spouses here. On 9th July 2012 changes were made to the Immigration Rules which, in summary, created a requirement that a UK partner who wishes to sponsor the entry of a non-EEA partner must have a "Minimum Income Requirement" of £18,600 gross per annum and additional income in respect of each child who wishes to enter the UK. Various other new income and savings requirements were also introduced.

The claimants challenged the requirements of the Immigration Rules with respect to:

  1. the setting of the minimum income level to be provided by the sponsor at above the £13,400 level identified by the Migration Advisory Committee as the lowest maintenance threshold under the benefits and net fiscal approach;
  2. the requirement of £16,000 before savings could be said to contribute to rectify an income shortfall;
  3. the use of a 30-month period for forward income projection, as opposed to a 12-month period that could be applied in a borderline case of ability to maintain;
  4. the disregard of even credible and reliable evidence of undertakings of third party support to the family; and
  5. the disregard of the spouse's own earning capacity during the 30-month period of initial entry (the requirements).

They contended that the requirements were an unjustified interference with their right to respect for private and family life under Art. 8 of the European Convention on Human Rights.

The high court’s Decision

In 2013, Justice Blake, sitting in the Queen’s Bench Division of the Administrative Court, held that the minimum income threshold of £18,600 was so onerous as to be an unjustified and disproportionate interference with a genuine spousal relationship protected under Article 8 of the European Convention on Human Rights, in relation to recognised refugees and British citizens.

This decision was a blow to the Home Office, who immediately appealed and put a stay on all Immigration decisions pertaining to the income threshold requirements whilst awaiting the Court of Appeal’s decision.

The Decision of the Court of Appeal

The Court of Appeal found in favour of the Home Office. Lord Justice Aikens, who delivered the judgement stated, “The Secretary of State does not have to have “irrefutable empirical evidence” that the individual features of the policy proposed will achieve the social aim intended. It is enough that she should have a rational belief that the policy will, overall, achieve the identified aim”. The aim, in this case, was to protect the economic interests of the country by ensuring that migrants who bring their families to the UK have the ability to support them without having to recourse to public funds.

The Court of Appeal’s overall conclusion was that the income threshold under Appendix FM was justified and did not amount to disproportionate interference with the rights to family life set out under Article 8.

Following the decision, the Home Office confirmed it would start processing the cases which were put on hold pending the outcome of the appeal. It was expected that most of these cases for Spouse Visas would fail.

The Supreme Court’s Decision – Anyone’s Guess?

Given the current hostile environment the UK Government has created towards migrants at the present time, it is anyone’s guess as to whether the Supreme Court will decide in favour of the Appellants or the Home Office. It is vital to remember that in the United Kingdom, the Judiciary is completely separate from both the Executive and Legislative branches of the Government, so despite the desire for the Conservatives to curb Immigration as much as possible, the Supreme Court is free to find in favour of the Appellants. One factor that may influence the judges is that the £18,600 threshold requirement is significantly higher than the current minimum wage, and this clearly shows that the financial requirement is disproportionate. According to research, 47% of British citizens would not qualify to sponsor a partner under the existing rules.

Keep watching this space, as soon as the Supreme Court’s decision is published, we will update our readers.

In the meantime, if you need legal advice pertaining to Spouse Visas, then please call us on 0207 936 9960. OTS Solicitors is regarded as one of the best Immigration solicitors in London, and we can assist you with all matters concerning Immigration law. We look forward to receiving your call.

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