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Landmark Judgment in MM & Ors Government’s Family Migration Rules fail children and declared unlawful by Supreme Court, but income threshold stands

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Posted on February 22nd 2017

Today’s long-awaited Supreme Court ruling in MM & Ors gives hope to thousands of families divided or exiled from the UK because they do not earn enough to live with the person they love. 

The case challenged the requirement for British citizens and settled UK residents to earn at least £18,600 a year in order to sponsor a spouse from outside of the European Economic Area (EEA). JCWI intervened in the case, together with the Office of the Children’s Commissioner of England (OCC), to argue that the family migration rules do not adequately safeguard the welfare of children. 

  • The Supreme Court unanimously ruled that the consideration of children in spouse/partner visa applications is incompatible with their rights under national and international law. Specifically, the Family Migration Rules and guidance fail to fulfil the Government’s legal duty to have due regard to children’s best interests as a primary consideration in immigration decisions. The judges have declared these Rules and instructions to Home Office decision-makers unlawful in this respect.
  • The judges also ruled that, where the financial requirements are not met, further consideration must be given to alternative sources of income in deciding whether to grant leave to partners and spouses outside of the Family Migration Rules. 
  • However, the Court upheld the overall acceptability and proportionality of the £18,600 minimum income requirement in principle, and its compatibility with human rights legislation under Article 8, Article 12 and Article 14 of the European Convention of Human Rights (given effect in UK domestic law through the Human Rights Act 1998). This was because the Home Secretary always has a discretion to grant leave outside the rules if strict application of the rules would violate a person’s human rights. 

The minimum income requirement of £18,600 has caused heartache and misery for thousands of families since its introduction in July 2012 as part of the effort to reduce net migration. The Rules are contained in Appendix FM to the Family Migration Rules.

Many families have been divided across borders, with children forced to maintain a relationship with a parent via Skype. Others are exiled from the UK, unable to return as a family or to maintain relationships with British grandparents and other relatives. 

Since 2012, JCWI has fought for the Rules to be overturned. The threshold is the highest, relatively speaking, in the world. It is 138% of the UK minimum wage and would not be met by an estimated 41% of the UK working population. Women and those outside of the South East are even less likely to reach the threshold. 

We welcome the Supreme Court’s ruling that the Family Migration Rules and accompanying guidance fail to ensure that the statutory duty to consider the best interests of children is upheld – a legal requirement under national and international law – and that the current Rules are therefore unlawful on this basis. 

Children are the unintended victims of the Rules. JCWI and the Office of the Children’s Commissioner intervened in the case to argue for their rights. Our research, submitted to the Supreme Court and referenced in the judgment, shows that at least 15,000 children have been adversely affected. Thousands of children are separated from a parent and suffer severe behavioural and emotional problems as a result. 

“He struggles, completely, he really struggles. It’s horrible. He has got anxiety… he gets knots in his tummy and he worries, yeah. We had him at the doctor a few times about stomach ache and the doctor said it was anxiety. Just not knowing, no stability, not knowing what’s happening… And seeing a child crying all the time because they are anxious, that’s horrendous. He is seven, he should never feel that way, he should be a child, and they are taking that away.”  British mother, 7 year old son separated from his father

Barrister Victoria Laughton, who represented JCWI and the Office of the Children’s Commissioner in the intervention, stated in response to the ruling: 

“This case clearly illustrates the important principle that the best interests of the child must be taken into account by the Secretary of State when drafting immigration rules. Further, any guidance issued must also treat these best interests as a primary consideration and cannot lay down a highly prescriptive or unnecessarily stringent test to satisfy.”

While we are disappointed that the legality of the income threshold has been upheld by the Supreme Court, the judgment (available to download below) also gives hope for some families who are unable to meet it. The judges ruled that, where the minimum income requirement is not met, further consideration should be given to alternative sources of income when considering whether a visa should be granted outside of the Rules. Other sources of income cannot be completely disregarded in policy in order to comply with human rights legislation. The judges recommend that the the official guidance be changed to reflect this and advised that it might be better to change the actual Rules. 

This ruling could allow non-EEA spouses to be granted leave to remain in the UK outside of the Rules where their partner does not earn the necessary amount. This could take into account their own prospective earnings in the UK or support offered from family members, which currently are not considered by the Entry Clearance Officers who make decisions, to show that there would be no risk of the family relying on benefits. The rigidity of the financial requirements in this regard is a major barrier for many families who cannot meet the Rules, but would not rely on benefits if they were allowed to be together in the UK. Allowing other forms of support to be taken into account could help families in this position.

“Basically, if you don’t have six month’s payslips, you won’t get any visa… in November my wife phoned me and said she was pregnant. So clearly I am in England, she is in Japan, she has just told me she is pregnant and the immigration told me we are not going to be able to apply for a visa for six months.” Father, two children aged 3 years and 4 weeks

 

Background to the case

The case of MM & Ors was brought by three families who could not meet the Minimum Income Requirement. Two of the partners were British and one had refugee status in the UK. All have spouses from outside the EEA who wanted to apply to live with them in the UK.

The appellants argued that the Minimum Income Requirement was a disproportionate interference with their human rights under Article 8 (the right to private and family life) and Article 14 (the right to non-discrimination) of the European Convention of Human Rights (ECHR), encoded in British law through the Human Rights Act 1998.

The case also argued that the Rules discriminate unlawfully against certain groups. Women are much less likely to be able to meet the income threshold, as are people who live outside of London and the south east, where wages are lower.

The Government has maintained throughout that the financial requirements strike the correct balance between the public interest and the right to respect for private and family life, as they ensure the financial viability of the family unit. The Appellants and JCWI have always disagreed with this position.

 

Defending the rights of children

JCWI intervened in the case, alongside the Children’s Commissioner for England, to defend the rights of families and children. Our previous research (conducted together with academics from Middlesex University on behalf of the Office of the Children’s Commissioner) revealed the devastation the Rules are causing families, especially children.

Our research found that at least 15,000 children had been adversely affected by these Rules since they came into force. Most are British and the majority would have experienced separation from a parent as a result, or faced exile from the UK. Where the child lives with the British or settled parent in the UK, the overseas parent is often refused a visit visa even for short periods, as they are seen as likely to overstay so that they can be with their family. 

The adverse impacts for affected families are considerable. Our research found that children suffer severe emotional and psychological problems due to separation from a parent, including stress, anxiety, bedwetting, and eating problems. This can really impair their future prospects and attainment. Parents suffer from stress and depression and this also impacts their children.

“We are not a family. Our only child does not have his father and his father never got to see his son being born. He has never held him or kissed him. I'm a single parent trying to raise a child alone and our child is being affected mentally and emotionally. As for us, the parents, we are both very depressed and extremely stressed. It is hell! Words do not describe our pain and misery.” British mother, research participant

Our legal analysis found that the Rules and accompanying guidance do not comply with the Government’s duty to safeguard and protect the best interests of children. Home Office decision-making on visa applications routinely fails to adequately consider the best interests of children and the Rules are not applied fairly as the guidance given to Home Office employees who decide cases is fundamentally flawed. As a result, JCWI and the OCC argued that the Rules as drafted breach national and international law. The Supreme Court ruling mirrors our arguments and calls on the Secretary of State to change the law in order to more clearly reflect the duty to consider children’s best interests.

Responding to the judgment, Saira Grant, Chief Executive at the Joint Council for the Welfare of Immigrants (JCWI said:

“This judgment is a real victory for families especially those with children. For five years JCWI has been working with affected families and has been trying to persuade the Government to abandon the Family Migration Rules it introduced in 2012 because they are tearing families apart and significantly harming children. The Supreme Court has now declared this to be the case. These Rules are unlawful as they do not safeguard the best interests of children. The strict requirement that only the sponsor’s personal finances can allow the £18,600 threshold to be met has also been discredited. The Supreme Court has said that alternative funding sources should be taken into account when a person’s right to family life could be breached. 

These are significant victories for families up and down the country. This judgment confirms that the Government’s position is now untenable and they must now take immediate steps to protect the welfare of children in accordance with their legal duty.”

 

What next for divided families?

The Government must now implement the Supreme Court’s ruling. They must amend the Family Migration Rules and accompanying guidance to decision-makers, in order to ensure that the statutory duty to consider children’s best interests is fully reflected in all decisions that concern children. 

In addition, the Court has recommended that the Government clarify to decision-makers that alternative sources of funding can be considered in an assessment of whether leave should be granted outside of the Rules. While the judges did not specify how this must be done, they ruled that a blanket policy of not accepting other forms or sources of funding would be incompatible with the Human Rights Act 1998. 

JCWI will continue to campaign and lobby in order to ensure that the ruling is implemented and all recommendations are reflected in the Rules and guidance, so that as many families as possible benefit from this judgment.

We will shortly publish a legal note for families on the implications of the ruling. 

If you are affected by the Family Migration Rules, you can contact our legal team to book an appointment for our advice surgery.

 

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