R (MM (Lebanon)) v Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtSupreme Court
JudgeLady Hale,Lord Carnwath,Lord Kerr,Lord Wilson,Lord Reed,Lord Hughes,Lord Hodge
Judgment Date22 February 2017
Neutral Citation[2017] UKSC 10
Date22 February 2017

[2017] UKSC 10

THE SUPREME COURT

Hilary Term

On appeals from: [2014] EWCA Civ 985 and [2015] EWCA Civ 387

Before

Lady Hale, Deputy President

Lord Kerr

Lord Wilson

Lord Reed

Lord Carnwath

Lord Hughes

Lord Hodge

R (on the application of MM (Lebanon))
(Appellant)
and
Secretary of State for the Home Department
(Respondent)
R (on the application of Abdul Majid (Pakistan))
(Appellant)
and
Secretary of State for the Home Department
(Respondent)
R (on the application of Master AF)
(Appellant)
and
Secretary of State for the Home Department
(Respondent)
R (on the application of Shabana Javed (Pakistan))
(Appellant)
and
Secretary of State for the Home Department
(Respondent)
SS (Congo)
(Appellant)
and
Entry Clearance Officer, Nairobi
(Respondent)

Appellant (MM (Lebanon))

Manjit Singh Gill QC

Tony Muman

Navtej Singh Ahluwalia

(Instructed by J M Wilson Solicitors)

Appellant (Abdul Majid (Pakistan))

Ramby de Mello

Danny Bazini

Neil Garrod

(Instructed by Bhatia Best)

Appellant (Master AF)

Richard Drabble QC

Tony Muman

Joseph Neville

(Instructed by RBM Solicitors)

Appellant (Shabana Javed (Pakistan))

Ramby de Mello

Aftab Rashid

(Instructed by Birmingham Law Practice Ltd)

Appellant (SS (Congo))

Richard Drabble QC

Tony Muman

Joseph Neville

(Instructed by JM Wilson Solicitors LLP)

Respondent (SSHD)

Lisa Giovannetti QC

Neil Sheldon

Alan Payne

(Instructed by The Government Legal Department)

Interveners (Children's Commissioner and Joint Council for the Welfare of Immigrants)

Karon Monaghan QC

Victoria Laughton

(Instructed by Freshfields Bruckhaus Deringer LLP)

Heard on 22, 23 and 24 February 2016

Lord Carnwath

Lady Hale AND( with whom Lord Kerr, Lord Wilson, Lord Reed, Lord Hughes and Lord Hodge agree)

Introduction
1

In July 2012, a new Appendix FM was inserted into the Immigration Rules, dealing with the entry requirements for non-EEA family members to join their relatives here. Section EC-P dealt with entry clearance and leave to remain as the partner of a British citizen in the United Kingdom, or a person settled in the United Kingdom, or a refugee or person with humanitarian protection in the United Kingdom. By partner is meant a spouse or fiancé(e), a civil partner or proposed civil partner or a person living in a relationship akin to marriage or civil partnership for at least two years. Section E-ECP dealt with the financial requirements. These were more precise and stringent than anything which had gone before (and are here referred to as "the Minimum Income Requirement" or "MIR"). Put shortly, they required that the sponsoring partner have a gross annual income of at least £18,600, with an additional £3,800 for the first dependent non-EEA national child and £2,400 for each additional such child. Only the sponsor's earnings are to be taken into account: the prospective earnings of an entering partner, and any support from third parties, are ignored. Alternatively, the couple are required to have substantial savings, £16,000 plus two and a half times the shortfall in the sponsor's earnings.

2

Estimates differ as to the proportion of the adult population who can meet these requirements but it is clear that a substantial number cannot do so, especially if they have children. Median full-time gross earnings in the UK in 2012 were £26,500 but for men they were £28,700 and for women £23,100. There were also substantial regional differences, with people in London and the south-east earning above the national median and people in Northern Ireland, Wales, and the north east earning considerably below (Office for National Statistics, Statistical Bulletin: Annual Survey of Hours and Earnings: 2012 Provisional Results, November 2012); the 2015 Provisional Results were published in November 2016. 301 out of the 422 occupations listed had average annual earnings below £18,600. Among those earning below that figure were many providing essential public services.

3

Four of the cases before us, MM, AF, AM and SJ (for convenience we shall refer to all the parties by initials), are claims for judicial review of the MIR launched around the time that Appendix FM was first introduced. The MIR is challenged on the ground that it is incompatible with the rights of the claimants and their partners (and a child living with one of them) under articles 8, 12 and/or 14 of the European Convention on Human Rights and also that it is unreasonable and ultra vires on common law principles. The claimants enjoyed a measure of success before Blake J in the Administrative Court: [2013] EWHC 1900 (Admin); [2014] 1 WLR 2306. The Court of Appeal allowed the Home Secretary's appeal: [2014] EWCA Civ 985; [2015] 1 WLR 1073. The fifth case, SS, is an appeal against the refusal of entry clearance because of failure to meet the MIR. The appeal succeeded on article 8 grounds in both the First-tier Tribunal and the Upper Tribunal. The Court of Appeal heard the Entry Clearance Officer's appeal, along with five other selected test cases, and the appeal was allowed: [2015] EWCA Civ 387; [2016] 1 All ER 706. The Supreme Court directed that all five appeals be heard together.

The MIR and the background to its introduction
4

Before the introduction of the MIR, the Immigration Rules required broadly that the parties would be able to maintain and accommodate themselves and any dependants "adequately in the UK without recourse to public funds", which included social housing and most welfare benefits but not the NHS, education and social care. This is still the criterion which applies if the applicant's partner is in receipt of disability living allowance or similar disability-related benefits (see Appendix FM, para E-LTRP 3.3). In KA and others (Pakistan) [2006] UKAIT 00065; [2007] AR 155, the Upper Tribunal adopted income support as the test of adequate maintenance — at that level it could not be said that the family were not properly maintained but neither should it be contemplated that immigrants would live below that level. This reasoning was approved by the Court of Appeal in AM (Ethiopia) v Entry Clearance Officer [2008] EWCA Civ 1082, [2009] Imm AR 254, para 78. This amounted to around £5,500 a year after deduction of tax and housing costs.

5

Problems were encountered with that approach. The assessment did not depend upon a set income threshold but on a consideration of current and prospective employment income of both parties, the extent of any other financial means, including the support of third parties, and their housing costs. Entry clearance officers and case workers found that it was difficult to apply the test consistently and for applicants and sponsors to assess whether they would meet it. It was complex to administer, particularly in respect of any benefits which the sponsor might claim, as it was difficult to know whether these were the result of admitting the partner. It did not prevent burdens on the system arising over the longer term once the partner had qualified for settlement and thus for full access to welfare benefits.

6

Hence the Home Office set about devising an alternative policy. A consultation paper proposing a new minimum income threshold for sponsors wishing to bring a non-EEA national spouse or partner or dependants into the UK, set at a higher level than the safety net of income support, was published in July 2011. At the same time the Government asked the Migration Advisory Committee to consider what the minimum threshold should be in order to ensure that the sponsor could support a partner and any dependants independently without their becoming a burden on the state. The Committee's Report, Review of the minimum income requirement for sponsorship under the family migration route, was published in November 2011.

7

The Committee based its calculations on the gross income received by the sponsor in the United Kingdom, without deducting housing costs, which it believed were open to manipulation and difficult to verify (paras 4.24–4.26). It acknowledged, however, that there was a strong case in principle for including the future earnings of the sponsored migrant as it is the total household income which determines whether they will be a burden on the state (para 4.20). It then developed three options: benchmarking to levels of pay, such as the national minimum wage, the "living wage", the 25th percentile of UK wage distribution and so on; or benchmarking to the benefits system, that is to the level of income beyond which the family would not be entitled to income-related benefits, including tax credits; or benchmarking to the net fiscal contribution, the point at which more is paid in tax than is consumed in public services, such as health and education, as well as welfare benefits.

8

The "pay approach" was rejected because, although simple to calculate and understand, it did not relate directly to the question asked, nor was there any clear economic basis for selecting one threshold over another (para 5.2, 5.3). Under both the "benefits" and the "net fiscal" approaches, the lowest possible threshold was £13,400 a year and the highest was £40,000. Under the "benefits approach", the committee's preferred threshold was £18,600 a year, the point at which the family would not be entitled to any income-related benefits, including tax credits and housing benefit, assuming a two adult household (because the additional adult increases benefit entitlement) and housing costs of £119 per week (para 5.5). Under the "net fiscal approach", the preferred threshold was £25,700 a year, assuming a one adult household (because only one adult's income is taken into account) (para 5.6). The Committee therefore recommended that the income threshold be set between £18,600 and £25,700 gross annual income (para 5.7). The Committee also considered two methods of adjusting the income...

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