The Supreme Court decision in MM and others v Secretary of State for the Home Department is expected to be released in the next few months.  One of the most important immigration cases in years, the case will decide the fate of many so-called ‘Skype’ families and those residing in Britain who are living in fear that they will never be reunited with their loved ones.

The case challenges the minimum income threshold introduced by the British Government in July 2012.  Under previous Immigration Rules, such a couple applying for permission for the non-EEA partner to reside in the UK had to demonstrate that they could maintain themselves adequately without recourse to public funds.  The 2012 rules stated that a person settled in the UK who wishes to bring their non-EEA national spouse or partner into the country to live with them must earn a minimum of £18,600 per annum.

The minimum income requirement also affects those wanting to bring children to the UK.  On top of the £18,600, applicants who are also bringing dependent children to the country must earn a further £3,800 per annum for one child and £2,400 per annum for each additional child.

According to statistics, 40 percent of UK residence would not earn enough to meet the financial threshold.

Brief Facts of the Case

The Appellants, Mr Abdul Majid and Ms Shabana Javed, who have the “right of abode” in the United Kingdom and Mr MM, who has refugee status, are married to spouses who are not citizens of a European Economic Area (EEA) and who currently live outside the UK and wish to come to the country and live with their spouses.

The Appellants challenged the lawfulness of the minimum income requirement (MIR) on the grounds that it was contrary to the ‘right to family life’ under Article 8 of the European Convention of Human Rights.

The High Court Decision

In 2013, the Blake J in the High Court found that the MIR was ‘unjustified and disproportionate’ where the sponsor is a refugee or a British citizen.

In his lengthy judgment he stated:

“…to set the figure significantly higher than even the £13,400 gross annual wage effectively denies 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. This frustrates the right of refugees and British citizens to live with their chosen partner and found a family unless such modest earnings could be supplemented by any reasonably substantial savings, third party support or the future earnings or the spouse seeking admission. The executive can hardly be heard to say that the minimum adult wage is a manifestly inadequate sum to provide a basic standard of living over the subsistence threshold for a household without dependent children.”

The Judge also made the point that in the case of refugees, they did not choose to leave their country, they were forced to flee for their own safety.  Therefore, to insist they make a choice between living in the same country as their partner and/or children or their personal safety is unreasonable.

The Court of Appeal

The Home Office appealed the High Court’s decision and the Court of Appeal found in their favour.

Aikens LJ stated that the right to marry and start a family in the UK is not an ‘absolute right’ but did accept that the MIR was a significant interference to the right of family life under Article 8.  However, he ultimately decided that the MIR did not disproportionately interfere with the rights of family life that are protected by Article 8 and therefore, the MIR was legal.

In Summary

The decision of the Supreme Court is highly anticipated and will decide the fate of hundreds of families currently separated by the MIR.

We will keep you posted on any updates as soon as they become available.

In the meantime, if you require immigration advice on bringing your spouse, partner or children to the UK to live with you, please contact our Birmingham office on 0121 222 7643.

Sultan Lloyd Solicitors is one of Birmingham’s best immigration law firms and our immigration team has years of experience in assisting people and businesses with immigration applications and appeals.