Theresa May’s Government is relieved. The Supreme Court has finally settled the legality of a key principle: that the state may impose a minimum income requirement (MIR) on British citizens whose non-EEA dependents apply for entry clearance to join them in the UK.
The MIR was held up as a bellwether of the state’s ability to set and control immigration policy. The Brexit vote has raised the stakes: the Government needs to show it can start delivering on something the people had voted for.
On a day when a British suicide bomber recipient of alleged £1 million state compensation grinned from the front pages, the Government needed some good news. The judgement did not all go its way, though.
What was at stake?
The Supreme Court judges considered consolidated appeals which challenged the legality of a July 2012 amendment to the Immigration Rules imposing a MIR of £18,600 per annum, with additional sums for dependent children, on sponsors of non-EEA spouses and civil partners. The purpose is to exclude those whose family financial situations would be a net burden on the state and render them unable to contribute positively.
What were the legal arguments?
Essentially, that the provision is incompatible with:
- the European Convection on Human Rights, notably Article 8 (right to a family life) and consequent provisions of the Human Rights Act
- established common law principles
- s55 Borders, Citizenship and Immigration Act 2009 (duty to protect and safeguard welfare of children)
and therefore unlawful.
What was decided?
The judges were unanimous in their decision. The joint judgement handed down by Lady Hale and Lord Carnwath decided:
- The MIR is acceptable in principle: despite the hardship, it has a legitimate aim and is rational in scale, and therefore lawful if properly implemented.
- The Rules and Guidance as drafted unlawfully prevent the exercise of the s55 duty re the welfare of children.
- The Guidance to the Rules requires amendment to allow consideraton of other sources of funding.
What happens now?
The Government will keep it MIR at its £18,600 threshold where possible by:
- Using delegated legislation to amend the Rules and re-writing the Guidance to enable the exercise of the s55 duty re the welfare of children in relation to applications
- Amending the Guidance to specify reasonable alternative sources of funding.
Thereby side-stepping the partial finding of illegality and upholding the principle of an MIR that excludes a significant proportion of potential applicants.
What are the wider implications?
For those affected, enormous – because the judgement either enables their eligibility or confirms their exclusion.
For wider policy – far less than had the principle of MIR been found unlawful. As so often in the past, the judgement demonstrates that the Immigration Rules can only survive challenge if they and the Guidance to their use in practice take account of a range of applicant circumstances, and become more complex as a result.