The decision on the main challenge is legally defensible but taken with other recent cases Knights_S_146668relating to ECHR, art 8 (including the linked case of Agyarko and Hesham Ali) it represents a far more conservative approach in this area as compared to the line of art 8 cases emanating from the House of Lords a decade ago including Huang, Chikwamba, EB Kosovo, Beoku-Betts and ZH (Tanzania)). Given the stark impact the new rules have it is not impossible to see how a different conclusion might have been reached. Thousands of spouses including those with settled children in the UK with far from unusual circumstances will not in practice be able to meet the threshold stated in the rules. Instead they will have to rely upon a surely narrow strip of discretionary decision-making outside the rules.

The judgment referred in its legal analysis to a line of authority relating to deportation of foreign nationals convicted of crimes in the country where they reside. The policy considerations at large for such a category of individuals is of course entirely different to those who are in genuine relationships and simply wish to join their spouse and family in the UK. Additionally, whilst the Government accepts there is no cap on the numbers of spouse applications, the stated intention to reduce migration overall (as opposed to a generalized policy of control over immigration) surely must be of far more limited weight for this category.

Whilst a stated aim – namely to ensure that the couple do not have recourse to welfare benefits – is an entirely legitimate one, the new rules represent a radical departure in their impact from the previous rules which manifestly had a similar aim. The principle of a MIR per se is not objectionable as the Court states (see Konstantinov v Netherlands cited at para. 84) but the impact of the new threshold is surely a relevant consideration in considering compatibility. Moreover, whilst it was said that the earlier rule required a complex assessment, it is not obvious that the new rules will in practice be less complex for decision-makers given the obligation to look at cases pursuant to ECHR, art 8 outside the rules. What they certainly do is have a chilling effect on applications in the first instance as the application fee is high and many will not want to incur a non returnable fee in circumstances where they plainly do not meet the MIR.

Overall, it is surely an unfortunate result where the rules have “caused, and will continue to cause, significant hardship for many thousands of couples who have good reasons for wanting to make their lives together in this country, and to their children” (para. 80).  The Court also notes that the MIR may constitute a permanent impediment to many couples and that female sponsors are disproportionately affected, because of the persisting gender pay gap, as well as sponsors from certain ethnic groups (para. 81).

As regards the question of whether the framework was compatible with the best interests of a child principle, the spouses were successful. The Court had no doubt that the framework was not so compatible as the rules and instructions failed to treat those interests as a primary consideration and were unlawful (paras. 91-92). Thus the Court directed at para. 91 that the guidance should be amended in line with the principles set out in Jeunesse v Netherlands.

Finally, the Court considered the issue of alternative sources of funding and in particular the issue of third party funds or the entering spouses income potential. This was relevant to the case of MM where as the Court noted “there is a strong case on the merits for admitting her consistently with the general objectives of the new rules”. MM was a pharmacist with good prospects of finding skilled employment (para. 93) but whose spouse did not meet the MIR and exemplifies a significant category of individuals for whom the new rules present a problem. The Court held that the decision made not to permit reliance on such sources for the general rule was permissible but that case workers should be able to have regard to such sources in considering the application outside the rules. The Court’s concluded at para. 101 that the instructions to ECOs needed revision and invited consideration of whether it would be more efficient to revise the rules themselves to indicate circumstances in which alternative sources of funding should or might be taken into account, rather than simply to revise the guidance. This conclusion is obviously in line with the overall decision but for the reasons stated above represents in the writer’s opinion a missed opportunity to require a clear, fair and workable rule compatible with ECHR, art 8 which would allow the applicant to make an accurate assessment on the basis of the rule itself as to whether they will be admitted.

At the date of writing it us understood that the SSHD has yet to indicate how she intends to rectify the defects in the instructions.

Please see Part One here.