This week the hearing of the highly controversial and ground breaking case took place in the UK Supreme Court case of MM and others v Secretary of State for the Home Department. The ruling of this Supreme Court case will bear consequential and long lasting ramifications for spouses, civil partners, unmarried and migrant families as a whole.
The issues surrounding the “minimum income threshold” as introduced in the UK for spouse and partner visas in July 2012 have been highly contested. The UK Supreme Court must succumb to a conclusion on this controversy in relation to whether “minimum income threshold” breach the UK’s obligations under Article 8 right to family and private life set out in the European Convention on Human Rights.
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 in the High Court in 2013, Justice Blake 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.
Subsequently, the Home Office appealed and put a stay on all immigration decisions pertaining to the income threshold requirements whilst awaiting the Court of Appeal’s decision.
The Court of Appeal found in favour of the Home Office where Lord Justice Aikens justified their decision as protecting 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 and therefore did not amount to disproportionate interference with the rights to family life set out under Article 8. This ruling has been appealed to the UK Supreme Court by the claimants in this case and the hearing took place this week.
Our offices are currently taking High Court Judicial Review cases challenging the Irish equivalent financial thresholds in the INIS Family Reunification Policy Document, published in December 2013.
We are currently challenging the Minister’s stringent reliance on the minimum financial threshold criteria as outlined in the INIS Family Reunification Policy Document. We have issued High Court proceedings in respect of a number of cases where the Irish citizen sponsor is currently in employment, but cannot meet the three year retrospective rules. We are also challenging decisions made by the Minister for not taking into account the specific and exceptional circumstances of the individual case, for example, where the applicant is a full time carer, in receipt of disability allowance, a student, or unable to work for other specific circumstances.
It is our argument that when the Minister’s decision applies the Policy Document, and in particular paragraph 17.2 thereof, as a fixed and inflexible policy, and is therefore an unlawful fettering of Ministerial discretion.
We will watch the UK Supreme Court’s decision with much interest, as it may have a big influence on the equivalent type cases in our Irish courts.
We will prepare an updated blog article once the decision is published.
Brophy Solicitors Immigration Team