The UK Supreme Court recently ruled that ‘Minimum Income Requirements’ for non-EEA spouses does not breach human rights per se or the right to private and family life under Article 8 of the European Convention of Human Rights (ECHR). The Court held that the fact that ‘Minimum Income Requirements’ may cause hardship in some cases does not render it unlawful. The requirements had the legitimate aim of ensuring that those couples who do not have recourse to welfare benefits have sufficient resources to play a full part in British life. However, the Court found that the rules regarding Minimum Income Requirements’ were not sufficiently clear when it came to assessing applications involving children. It was found that the State must safeguard and promote the welfare of children when applying these income requirements in a decision before it. The Court also held that the guidance notes required amendment to allow consideration of alternative sources of funding when evaluating a claim under article 8 ECHR.
By way of background in July 2012 immigration rules were amended to establish new entry requirements for non-EEA applicants to join their spouses or civil partners in the UK. These included a 'Minimum Income Requirement' of at least £18,600 per annum with additional sums for dependent children, to be satisfied by the sponsoring spouse or civil partner.
The appellants sought to argue that the ‘Minimum Income Requirements’ and the Immigration Directorate Instruction on family migration giving guidance to entry clearance officers were incompatible with right protected under the ECHR and common law. One of the appellants was a child who also argued that the rules failed to take account of the Secretary of State’s duty under Section 55 of the Borders, Citizenship and Immigration Act 2009 to have regard to the need to safeguard and promote the welfare of children when making decisions which affect them.
Lady Hale and Lord Carnworth gave a joint judgement, with which all the other justices agreed. The Court found that the Secretary of State is bound by section 6 of the Human Rights Act to exercise her powers under the Immigration Act 1971 compatibly with the ECHR. In this regard the Court held that a robust proportionality test was in place to decide whether the Secretary of State has struck a fair balance between the individual and public interest, taking into account the relevant factors identified by the European Court of Human Rights. The rules envisaged a two tier process with the possibility of an appeal of an adverse decision. However, while the rules assert that the Secretary of State’s duty under section 55 of the Borders, Citizenship and Immigration Act 2009 had been taken into account there was nothing in the relevant section giving direct effect to that. Therefore the rules would need to be amended to reflect this. The Court did not indicate how these defects should be remedied and referred the matter to the Secretary of State to consider.
A copy of the judgement is available here.
A plain English explanation and further commentary on the case is available here.