Supreme Court Judgment: Government’s Family Migration Rules fail children and declared unlawful

After a year of waiting the Supreme Court handed down its decision on the legality of the minimum income requirement (MIR) of £18,600 last week.The Court broke down the issues into three heads:

The principle of a minimum income requirement
The treatment in the rules and instructions of children
The treatment in the rules and the instructions of alternative sources of funding

The Court found the challenge to the existence of a MIR in principle and the argument that there is no rational connection between the Secretary of State’s legitimate aim and the MIR, must fail. The Court stated that the Secretary of State is pursuing a legitimate aim and the MIR is part of an overall strategy aimed at reducing net migration. The Court rejected the view that there is no rational connection between the aim and the particular income threshold chosen.

In relation to the treatment of children, the Court declared that Government rules on visas for spouses from outside the EEA are unlawful because they fail to take into account the best interests of children. This offers hope to the thousands of families separated by the requirement that British citizens must earn a minimum of £18,600 a year to sponsor a wife, husband or partner to live with them in the UK.

The Supreme Court found that neither the Rules nor the official guidance given by the Home Secretary to Home Office decision makers are sufficient to protect the rights and interests of children. Even though both British and international law requires that the best interests of children be given primary consideration when making immigration decisions, the Rules fail to protect that right. As a result the Court declared the Rules and associated guidance to be unlawful.

The Court also expressed concern with the current approach to alternative sources of funding. Many of those affected by the income requirement do not quite meet the £18,600 income requirement, but could obtain support from other sources, such as family members, or their spouse’s prospective earnings in the UK (which are often higher than their own). This cannot be taken into account under the Rules. The Court stated that either the Rules or the guidance given to decision makers should be revised, allowing for a wider consideration of other ‘reliable sources of earnings or finance’, to ensure that decisions are compliant with Article 8 of the European Convention on Human Rights (the right to a private and family life). This applies whether or not there are children involved.

The Court did not overturn the MIR itself, currently set at £18,600 and rising to £22,400 to bring in a spouse and just one child.

SLF grantees Joint Council for the Welfare of Immigrants (JCWI) intervened jointly with the Office of Children’s Commissioner in the case of MM (Lebanon) & Ors which is the case challenging the minimum income requirements under the Family Migration Rules. Responding to the judgment, Saira Grant, Chief Executive at JCWI said:

This judgment is a real victory for families especially those with children. For five years JCWI has been working with affected families and has been trying to persuade the Government to abandon the Family Migration Rules it introduced in 2012 because they are tearing families apart and significantly harming children. The Supreme Court has now declared this to be the case. These Rules are unlawful as they do not safeguard the best interests of children. The strict requirement that only the sponsor’s personal finances can allow the £18,600 threshold to be met has also been discredited. The Supreme Court has said that alternative funding sources should be taken into account when a person’s right to family life could be breached.

These are significant victories for families up and down the country. This judgment confirms that the Government’s position is now untenable and they must now take immediate steps to protect the welfare of children in accordance with their legal duty.

With over 40% of the British population earning under £18,600, an estimated 15,000 children, most of them British citizens, are separated from one parent as a result of the MIR. The Joint Council for the Welfare of Immigrants (JCWI) intervened in the case, together with the Office of the Children’s Commissioner of England, to provide evidence of the severe psychological impact of this financial threshold on children separated from their parents.

Tom Snelling, of Freshfields LLP acting for JCWI in the intervention said:

We are very proud to have acted for the Children’s Commissioner and the Joint Council for the Welfare of Immigrants in this appeal. Our clients’ evidence was specifically referred to by the Supreme Court as illustrating the negative impact of the relevant family migration rules on children, many or even most of whom will be British citizens. The Court unanimously held that these rules failed to give effect to the Secretary of State’s duty to have regard to the need to safeguard and promote the welfare of children when making decisions which affect them. This is a separate duty, which stands alone from any other general human rights considerations.

The legal challenge brought in February 2016 petitioned the Supreme Court to lower the £18,600 Minimum Income Requirement (MIR) – the figure a British citizen or a permanently settled foreign resident must earn before they can apply for a visa for a spouse who comes from outside the European Economic Area. This increases to £22,400 if the couple wish to also sponsor a child, with an increase of £2,400 for every subsequent child. This has caused hardship and misery for tens of thousands of families.

In light of this judgment the Home Secretary must now take immediate steps to implement the Supreme Court’s ruling. She must amend the Family Migration Rules and accompanying guidance to decision-makers, in order to ensure that the statutory duty to consider children’s best interests is fully reflected in all decisions that concern children.

Affected families:

I’ve waited a very long time to find someone I could fall in love with and have a family with. Finally that time has come and instead of enjoying my first year of marriage and the first year of my baby’s life, it’s been horrendous, just one stress after another as we’ve tried to keep our family together. If my husband Carlos was sent back to Ecuador our family would be forced apart and it’s just unthinkable that in this day and age the Government could happily split a family up. It’s the prospect of my 15 month old baby’s loss that breaks my heart more than anything and the heartache it will cause my husband to leave his son and wife. He is our son’s main carer now and the bond sealed a long time ago. Either way our son will be the big loser in all of this – he either loses his birthright to a good education and growing up in a developed country or he loses his father and that is something I cannot believe our Government is willing to support. Caroline Coombs, Bason Bridge

This law has really affected all of us as a family and caused a lot of stress. Just before Christmas we received a letter from the Home Office saying my husband Aj, who is from the US, needs to attend an immigration centre in Middlesbrough every 2 weeks but he is liable for detention every time he goes. It’s not nice how we have this over us as a family. We have all lived as a family in the UK for the past 3 years and are settled into a routine, we have friends here and this is our home. The threat to deport Aj for up to 10 years is not nice, it’s causing us to feel on edge because the Home Office could come and remove Aj at any time. If Aj was removed the effect of this on our son would be devastating! Aj is the closest person to Jayden as I work to support us and Aj takes care of him and spends the most time with him. Jayden cries if Aj is out and can’t kiss him goodnight. I think the heartache of his dad being removed would affect Jayden emotionally and possibly mentally longer term. Lian Papay, South Shields

My son does not understand why everyone else has a father and his own is just a face on FaceTime that he gets to spend 2 weeks with a year. It is utterly devastating that his dad is absent simply because I currently don’t earn enough, it is unfair, discriminatory and we could contribute so much more to society if we were together as a family in the UK. Precious Depasse, Birmingham

Read JCWI’s blog entry After the MM ruling: Help JCWI continue to fight for #dividedfamilies