The Court of Appeal has delivered its long-awaited judgment in the case of MM & Ors, finding in favour of the Home Office. It is anticipated that Entry Clearance Officers will now determine, and refuse, those applications that were paused on account of failing to meet the Minimum Income Requirement introduced by the changes to the immigration rules made 9th July 2012 (known as Appendix FM). Those applicants now bringing appeals before the Tribunal may argue that the effect of the new rules in their individual circumstances has been to breach Article 8 ECHR (the right to respect for private and family life). On a proper analysis the judgment in MM & Ors supports this position.
The Challenge in MM and its outcome
The Court of Appeal has allowed the Secretary of State's appeals in the test litigation, MM et Ors v SSHD [2014] EWCA Civ 985. The case concerned whether the changes to the immigration rules made 9th July 2012 were unlawful as a disproportionate interference with the right to respect for family and private life enshrined in Article 8 of the European Convention of Human Rights (ECHR). The nature of the July 2012 rules is covered elsewhere in detail, but in brief, a UK-settled partner wishing to sponsor their spouse must demonstrate an income of £18,600 per annum (gross) with an additional £3,800 for the first child and £2,400 for each additional child. The anticipated income of the spouse requiring entry clearance cannot be taken into account, nor can the first £16,000 of savings. Promises of third-party support, even where evidenced in enforceable deeds of covenant, are not accepted except in limited circumstances. The claimants in MM & Ors did not apply under the new rules. Anticipating that any such application would fail, they rather sought to challenge the rules themselves by bringing judicial review proceedings. In a July 2013 decision in the High Court, Blake J concluded that there were certain circumstances in which the rules went beyond what was permitted by Article 8 ECHR. The rule that no reliance could be placed on the future earnings capacity of the non-EEA spouse in the first 2.5 years of residence in the UK he characterised [137] as:
…both irrational and manifestly disproportionate in its impact on the ability of the spouses to live together…
The Home Office appealed to the Court of Appeal, and in the intervening 12 months, put on hold those applications for UK spouse visas which would otherwise have failed because of the Minimum Income Requirement. This prevented non-qualified applicants from having access to the appeals system, since there would be no right of appeal until there was a refusal notice. On 11th July 2014, the Court of Appeal promulgated its decision, allowing the Secretary of State's appeal. The Minimum Income Requirement rules were upheld as being in principle lawful. The court found that:
" a particular IR [immigration rule] does not, in each case, have to result in a person's Convention rights being 'guaranteed'. In a particular case, an IR may result in a person's Convention rights being interfered with in a manner which is not proportionate or justifiable on the facts of that case. That will not make the IR unlawful."
The immigration rules could not be impugned as unlawful. On the standard of review set out in the judgment of Aikens LJ, the immigration rules would only be unlawful if they were incapable of being applied in a manner which was proportionate or justifiable, or were disproportionate in all or nearly all cases [133]. The Effect on UK Spouse Visa applications Assuming that entry clearance posts will now formally determine the applications that were paused (and that the applicants concerned have not already resolved matters by changing or abandoning their migration plans or submitting new applications) the immediate effect of the judgment will be that those applications would be refused, and the resulting litigation will enter the appeals system. (As of March 2014, nine months after the High Court judgment and the suspension of refusals, it was estimated there were 3,134 entry clearance cases on hold.) For those pursuing an appeal, it is important to note that the Court of Appeal has not given a generalised endorsement that the imposition of the Minimum Income Requirement will be compliant with Article 8 ECHR rights in each individual case; in fact it has explicitly set out that in individual cases, the effect may be a breach of Article 8 ECHR. Moreover, the judgment does not dissent from the approach already set out in MF (Nigeria) v SSHD [2013] EWCA Civ 1192. At paragraph 130 of MM:
We did not specifically hear argument on whether the new MIR together with the Guidance constituted a 'comprehensive code'. But whether or not they do makes no difference, on the analysis of the Master of the Rolls in MF (Nigeria). This is because, as he said at [45], in any event it would be necessary to apply a 'proportionality test' with regard to the 'exceptional circumstances' guidance in order to be compatible with the Convention and in compliance with Huang at [20].
This is a reference back to the finding of the Lord Dyson MR in MF (Nigeria) [44], that the phrase 'exceptional circumstances', where it appeared in the rules, should be read as requiring the application of the balancing exercise required by the jurisprudence of the Strasbourg court, and did not mean that an exceptionality test had been reintroduced into the law by force of Parliamentary authority. Thus whilst the rules and associated guidance say that it will only be in 'exceptional circumstances' that a departure from the explicit provisions of the rules will take place, this is not a legal test, and in fact this phrase signals the re-introduction of Article 8 ECHR (family and private life) considerations, which are assessed in the same way as before. Alexander Finch Senior Adviser, Passportia (c) Passportia Ltd
