The controversial and stringent financial requirements for spouse entry clearanceKnights_S_146668 applications, as inserted by a new Appendix FM in the Immigration Rules in July 2012 are the subject of this appeal. In short they require that the sponsoring partner has a gross annual income of at least £18,600 (the minimum income level or MIR) with an additional £3,800 for the first dependent non-EEA national child and £2,400 for each additional such child. Under these rules only the sponsor’s earnings are to be taken into account: prospective earnings of the entering partner and any support from third parties are ignored. Alternatively the couple are required to have substantial savings: £16,000 plus 2.5 times the shortfall in the sponsor’s earnings.  The MIR was challenged by way of judicial review by five claimants on grounds that it was incompatible with ECHR, arts 8, 12 and/or 14 and also that it was unreasonable and ultra vires on common law principles. 

The new rules mark a radical departure from the previous rules, which required broadly that parties should be able to maintain and accommodate themselves and any dependents “adequately in the UK without recourse to public funds”. Entry clearance officers and case workers claimed it was difficult to apply the former test consistently and for applicants to assess whether they would meet it and that it was complex to administer. The Government asked a committee to consider what the minimum threshold should be and various options were considered. Its recommendation that the threshold be set between £18,600 and £25,700 gross annual income was based solely on economic considerations and not on the wider legal, social or moral issues.

The Government decided to adopt the threshold of £18,600 to be applied without discretion or flexibility in respect of it. A statement of intent announced that the new rules fully reflected the factors which can weigh for and against an ECHR, art 8 claim, and that the rules themselves would state how the balance should be struck between the public interest and individual rights, taking into account the relevant case law. There was no generalized “exceptional circumstances” provision built into the rules although there was an exception for certain family situations in EX.1. This applied where (a) the applicant has a genuine and subsisting parental relationship with a child under 18 in the UK who is a British citizen or has lived here continuously for seven years and it would not be reasonable to expect the child to leave the UK; or (b) the applicant has a genuine and subsisting relationship with a partner in the UK who is a British citizen, settled in the UK or in the UK with refugee leave or humanitarian protection, and there are “insurmountable obstacles” to family life with that partner continuing outside the UK.

Evidence from the Government revealed that the MIR formed “part of an overall programme of reform intended to reduce net migration and restore public confidence in the immigration system” although it was not stated to be the primary objective of the reform. Between 2012 to 2014 30,000 applications were refused.

The new rules effect a substantial number of potential applicants and have obvious disproportionate effects within the various regions of the UK given widely divergent average income levels and for women and certain ethnic groups where there is disparity in pay levels.

The unanimous decision of the Court represents a limited victory for the spouses. They lost on their main challenge to the compatibility of the rules with the HRA and judicial review principles, the court holding that in general it is the decision in an individual case which may be incompatible with ECHR rights, rather than the relevant general rules or policies (para. 57). A significant factor in this regard was the Government’s change of position following the Government’s reaction to the decision in Huang to effect that the failure to meet the MIR does not in itself lead to an application being refused because the SSHD retains a discretion to grant entry clearance outside the rules in appropriate cases.  This concession was not something which was reflected in the Government’s statement at the time of laying the new rules before Parliament to effect that the rules were a complete code without any residual discretion. The Court themselves said at para. 67 that they remained “unconvinced that its approach could be reconciled with the correct legal analysis, as now accepted by [counsel to the SSHD].”

Please see Part Two here.