Family comes with a price

The Supreme Court handed down its judgement today in the case of MM and others v Secretary of State for the Home Department [2017] UKSC 10.

The appellants challenged the minimum income requirement (‘MIR’) that must be met by British citizens or settled persons who wish to sponsor their non-EEA spouses or children to come to the UK. The Court found that even though this rule may cause hardship, particularly to some groups of the population, it is not unlawful or incompatible with Article 8 (right to private and family life) of the European Convention on Human Rights. It further stated that this rule has the legitimate aim of ensuring that families will have sufficient resources to be part of the British community life and not have to rely on public funds.

This principle is in line with Article 8 of the Convention itself, which allows for limitations to the right when in the interest of the economic well-being of a country, and it has also been accepted by the European Court of Human Rights in its jurisprudence.

Oddly enough, all family visas to which the MIR applies are issued on condition of no recourse to public funds. This means that non-EEA family members would in any case not be permitted to become a burden on public funds but arguably they quite likely would be unable to immerse themselves in community life without sufficient financial means or the ability to claim benefits.  Under the current scheme only the income of the sponsor is taken into account, something which the Court found to be lawful, even though it is possible that a foreign partner or spouse may have higher qualifications, or is likely to be employed in higher-paid work than their British sponsor.

The judgement is not all doom and gloom for the families affected as the Court emphasised that where a case failed under the rules and was considered under Article 8, a much more flexible approach than the current one would be needed. This overrules earlier Tribunal cases which suggest that failure to meet the strict financial requirements in family applications are doomed to fail and allows room for flexibility to allow an application on human rights grounds if strong evidence of equivalent resources is presented.

Most importantly though, the Court found that the current rules and policies of the Home Office are incompatible with the statutory duty to safeguard and promote the welfare of children and were formally declared unlawful in this respect. The Home Office may now need to re-write the current rules and policies to take proper account of the impact on children and other possible sources of income and support.

Demetris Demetriou