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Immigration Solicitors

Immigration Income Barrier ruled as Legal (8 March 2017)

Date: 08/03/2017
Duncan Lewis, Immigration Solicitors, Immigration Income Barrier ruled as Legal

The long awaited judgement in the Supreme Court case of MM & Others in relation to the minimum income requirement (MIR) for partner/spouses was handed down on 22 February 2017.

There have been a number of conflicting opinions on whether the Supreme Court's decision can be interpreted as ‘victory’ for the Secretary of State for the Home Department (SSHD) or for pro-migrant campaigners.

Perhaps conscious of the public fallout of the post-Brexit decision, the Supreme Court has, with caution, directed that the minimum financial threshold is not the only consideration to be taken into account when deciding spouse/partner applications.

In summary the main aspects of the decision are:

1. Minimum Income Threshold

The crux of the reporting on this case has been the Supreme Court’s findings that the fact that the MIR causes hardship to many couples does not mean that it is incompatible with the Convention of rights, or otherwise unlawful at common law. Therefore the MIR has not been overturned, as many would have hoped. Aspects of the current rules have been found to be incompatible with ?the Article 8 of Human Rights Act and the SSHD’s duty to safeguard the rights of children under section 55 of Borders, Citizenship and Immigration Act 2009.

2. Treatment of Children

The current rules relating to partner/spouse visas do not make it clear that the SSHD should give primary consideration to any children involved in cases. The Supreme Court confirmed that while the SSHD has guidance on this issue it should be clear from the rules themselves that the statutory duty has been properly taken into account. The Supreme Court granted a declaration that in this respect both the rules and the SSHD’S instructions are unlawful.

3. Alternative sources of funding

Aspects of the instructions to entry clearance officers require revision to ensure that the decisions made by them are consistent with their duties under the Human Rights Act. The Supreme Court however did not state what type of alternative sources should be permitted but stated that the SSHD might wish to consider whether to revise the rules and indicate what type of alternative sources of funding should or might be taken into consideration to meet the MIR.

Although perhaps as not as far reaching as repealing the MIR, the judgment appears to perhaps suggest that decision makers must now take a more holistic approach when considering such applications.

This could possibly lead to exceptional criteria as set out in EX.1. of the rules which have been in place for in-country applications of the rules now being ?eligible to be considered in entry clearance matters.

With regards to cases under appeal, the Supreme Court’s judgment could now see an end to Immigration Judges’ often reluctance to consider wider issues with regard to spouse applications, and for a beginning of greater flexibility to consider decisions in line with the principle of 'fairness' as indicated by the Supreme Court.

At the conclusion of the judgment the Supreme Court has directed that aspects of the SSHD’s instructions require revision and has allowed time for the SSHD to consider her position of how she proposes to amend the current instructions, or other guidance to be compatible with the law. The Court will consider whether a further hearing is necessary.

As has always been the approach, each case must rest on its own facts and this judgment highlights how vital it is ensure that such applications are prepared properly with as much supporting evidence as possible.

Kawther Al-Aaraji & Vicash Ramkissoon, the authors, are a caseworker and director in the Immigration Department respectively with extensive experience of Appendix FM and article 8 cases.

Kawther’s experience also covers an array of immigration law with a focus on private and corporate immigration, especially Tier 1 and Tier 2 of the Points-Based System. Vicash has drawn on his experience working with Fortune 100 companies and high net worth individuals in order to provide technical expertise on complex immigration matters as well as applications under the Points-Based System including all aspects of Tier1, Tier 2 and Tier 4 Applications. He often assists small/medium sized companies with the process of licensing and compliance under the Sponsorship Management System.

Duncan Lewis Immigration Department

Duncan Lewis immigration solicitors are one of the UK’s leading providers of immigration services and can advise on asylum application and appeals, right to work in the UK, spousal visas and British citizenship.

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