The Price of Love: MM and others v Secretary of State [2014] EWCA

Georgina Firth

The issue of family migration has long been a controversial area in immigration law, not least because it represents a particular set of challenges to a Government. Unlike decisions to admit a migrant for work or business, family migration brings to the fore a tension between the personal interests of those lawfully in the UK who wish to reunite with their family members and the desire of the Government to manage and often limit migration. One of the recurrent themes that emerges in policy in this area is a concern that family migrants and their British based sponsors should have sufficient financial resources to be able to support themselves and enable the migrant to participate and integrate into society without being a burden on the general taxpayer. In the Family Migration Consultation of July 2011, the government argued that too many family migrants are reliant on the low wages of their sponsor and risk needing welfare support.

As a consequence of the Consultation, the government introduced a significant package of changes to the Immigration Rules for family members in July 2012. One of the most controversial of these changes was the introduction of a minimum income threshold, set at £18.600 with additional sums for each dependent child, for British citizens or partners lawfully settled in the UK who wish to sponsor their foreign partners from outside the EEA. This threshold was set after the government had taken advice from the Migration Advisory Committee (MAC) which had carried out a review of the minimum income requirement for sponsorship under the family migration route. MAC predicted that 45 per cent of applicants eligible under the old rules would be excluded by the new financial provisions. This was considered a conservative estimate in research on the potential effects of the rules by both the Oxford University Migration Observatory and the Joint Council for the Welfare of Immigrants, which highlighted the devastating impact of these provisions on the young and the less wealthy.

These worrying predictions were proved correct in a response to a freedom of information request by Colin Yeo of the Free Movement Blog. This showed that, in the 6 months since the introduction of the new rules, there was a significant reduction in the number of visas issued (78.3 per cent generally and 83.6 percent where the sponsor is likely to be female) compared to the previous period. It is worth noting that MAC emphasised that its recommendations were based purely on economic considerations and did not take into account wider social, legal or moral issues related to family migration (MAC page 1). Interestingly, Fiona MacTaggart MP described the financial requirement as a “means test on family life” and contrasted it with the Government’s previously stated “family friendly” intentions.

Not surprisingly, the lawfulness of the rules was challenged in the courts in MM and others v Secretary of State [2013] EWHC 1900 Admin. In July 2013, the High Court, whilst refusing to strike down the Rules, noted that they represented ‘a radical departure from the norm in the European Union based on the Family Reunion Directive’ (para 145). Mr Justice Blake stated that to set the figure significantly higher than the £13,400 gross annual wage effectively denied young people and many thousands of low wage earners in full time employment the ability to be joined by their non EEA spouses from abroad unless they happen to have wealthy relatives or to have won the lottery (para 126).

The Court further held that the earnings threshold could be considered disproportionate if combined with any of the other four requirements in the rules, for example, an inability to supplement a shortfall in income with savings unless the savings were over £16,000, and urged the Home Secretary to adjust them. Mr Justice Blake suggested a variety of less intrusive responses that could be taken by the Secretary of State when assessing adequacy (para 147). Permission was given to appeal to the Court of Appeal and decisions where the minimum income requirement was not met were put on hold by the Home Office. By the time the Court of Appeal judgment was promulgated, around 4,000 individual applications were affected.

On 11 July 2014, the Court of Appeal overturned the High Court’s decision following an appeal by the Home Secretary (MM and others v Secretary of State [2014] EWCA Civ 985).  The general tenor of the decision indicates an unwillingness to interfere with government decisions and contrasts markedly with an increasing engagement of the Supreme Court in questions involving the respect for family life of migrants (see Baiai [2008] UKHL 53 and Quila [2011] UKSC 45).  Essentially, the Court of Appeal held that the requirements are lawful and refused to analyse the basis of the Secretary of State’s decision to introduce the requirements into the Immigration Rules as they are merely statements of administrative policy.

Lord Justice Aikens commented that the right to marry and found a family in the UK is not an absolute right (para 137). He accepted that the minimum income threshold is a very significant interference with the right to family life but considered it justified in public law terms (paras 138, 156). Unfortunately, in reaching its decision, the court seemed to pay little heed to the detailed evidence presented by claimants’ lawyers and set out in the High Court judgment. Instead, the judgment followed a line of reasoning it has adopted in other recent immigration decisions (see Bibi [2013] EWCA Civ 322) stating that it was enough that the Secretary of State should have a rational belief that the requirements will achieve an identified aim.

The policy aim here was to safeguard the economic well-being of the country and to facilitate social integration of new arrivals. During the hearing in March, the Home Office pursued the questionable argument that the rich will integrate into society better than the poor. This position is not scrutinised by the Court of Appeal. Lord Justice Aikens commented that such a belief is not susceptible of empirical proof, but that a belief in the link between higher income and the likelihood of better integration is rational and so the judgment of the Secretary of State “cannot be impugned” (para 150).

The new rules will clearly have a significant effect on the number of family members who can meet the conditions of entry and will disproportionately impact the less wealthy and young families. Further, as Wray has argued, they are also likely to fail in their main aim of preventing welfare dependency, as a single person is more likely to claim benefits than a couple, where both are able to seek work and contribute to the family finances (Helena Wray Editorial’ Journal of Immigration, Asylum and Nationality Law vol. 27, no. 3, pp. 196–197).

 Colin Yeo has argued that an analogy ought to be drawn between the minimum age for sponsorship and minimum income. In Quila, the Supreme Court held that an increase in the minimum age for sponsorship from 18 to 21 was unlawful. Yeo argues that income for some people is as immutable as age and so the same principles ought to apply. Many people on the national minimum wage, however many hours they work, simply cannot achieve the required income level and will never be able to change this.

 A wider question is whether such a policy ought to have been adopted at all, given that it ignores the reality of relationships in a modern globalised world. It is notable that Bibi, which relies on the same test of rational belief is currently being appealed to the Supreme Court and there seems little doubt that MM will also proceed to the Supreme Court on an expedited basis. It is to be hoped that the Supreme Court will adopt the rigorous approach it has taken in cases such as Baiai and Quila in assessing the available evidence and require the Secretary of State to show an objective justification for a policy which has the potential to cause great misery and  separate many families permanently.

Georgina Firth is a lecturer in law at Lancaster University Law School. Her specialisations lie in Asylum and Immigration law, Criminal law and Criminal Justice. She has recently contributed to the chapter on Family Life in Clayton, G., Textbook on Immigration and Asylum Law (6e) Oxford, OUP. She was formerly a barrister at Garden Court North Chambers and retains her links to the Bar.

You can find out more about Georgina’s research at http://www.lancaster.ac.uk/fass/law/profiles/georgina-firth

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