Decision of the Court of Appeal in the spouse visa related financial maintenance rules made, 11 July 2014 – by Rlegal specialist UK immigration solicitors

The long awaited decision in the case of MM and others v The Secretary of State for the Home Department [2014] EWCA Civ 985 (“MM 2014”) has today been given by the Court of Appeal.

It has particular significance for those seeking permission to enter or remain in the UK under the fiancé, unmarried partner or spouse categories brought into the immigration rules on 9 July 2012, which introduced specific maintenance requirements, see below.

The Court of Appeal’s decision allows the Secretary of State’s appeal and overturns the previous High Court judgement which challenged the government’s rules of 9 July. It is a significant blow to those British spouses who were hoping to see an end to the strict financial criteria and can certainly be seen as a victory for the Home Secretary, Ms Theresa May with less than 12 months to go before an election. However, it is highly likely that the Court of Appeal’s decision will be challenged so this is not necessarily the end. We initially reported that limited permission had been granted by the Court of Appeal to the Supreme Court on the 11 July, this was based on a circular released on the day of decision, we have now spoken to one of the barrister’s involved and he has advised that an application to appeal the decision has not yet been filed.

If you are seeking permission to enter or remain in the UK under the fiancé, unmarried partner or spouse rules as an established firm of UK immigration solicitors, RLegal can advise on the implications of the decision and guide you through the complex immigration process for partners.

9th July 2012 changes

The 9 July 2012 amendements to the immigration rules introduced a specific maintenance threshold that a sponsor was required to meet in order for their non EEA family members had to meet to join them in the UK. The level was set at an annual gross salary £18,600 for a partner plus £3800 for the first dependant child and £2600 for each dependant child thereafter. The stated reasoning behind the income levels were that these were the amounts above which a family could not claim public benefits. It has since been shown that these levels may have been set artificially high and it this point which sits at the heart of today’s decision.

Decision of the Court of Appeal in the case of MM 2014

The Court of Appeal reviewed the historical basis of the immigration rules, case laws related to spouses and the decision of the previous court. The leading judgement was given by Lord Justice Aikens.

In making its finding the court concluded that the work of the Migration Advisory Committee (MAC), as to how the figure of £18600 was reached, showed:

‘there is clearly a “rational connection” between both the figures chosen and the aim of the policy.’

It found that the government had the right to research what the necessary levels of income and savings should be and the reliability of it when setting the income threshold. It was also satisfied the figures had not just come from ‘out of the air in an unthinking way’.

Perhaps interestingly for the court, the case was about what level of threshold could be set and, that the policy guidance for this could be obtained from the  MAC – and by undertaking research, the Secretary of State had ‘discharged’ her duty and any ‘interference’ was indeed ‘fair’.

What next?

It is almost certain that the decision of the Court of Appeal will be challenged in the Supreme Court. Given the length of time it has taken for the High Court’s decision to be challenged, it is probably safe to assume that a decision in the Supreme Court will not be made this side of the election.

Also, given the importance of the case and that it is accepted by all parties that a central aspect of the case revolved essentially around Article 8, it is likely that the case will eventually go to the European Court of Human Rights (ECHR). Perhaps an irony in this case is that the ECHR - a European court is likely to have the final say! Perhaps we should all start calculating our time limits.

We await the official Home Office response and an announcement on how it will deal with cases lodged which did not meet the 9 July 2012 changes, but were put on hold pending this decision. We suspect that the Home Office will proceed to refuse such applications which would be in vogue with its current thinking. Perhaps what is important is that applicants who fall foul of the maintenance threshold should still consider preparing and pursuing an application under Article 8.

In our view this is certainly a controversial decision. It raises some interesting points about the MAC and the court’s reliance on it’s report.

We expect considerable media attention, particularly on how it continues to impact on those who have been caught by the 9 July 2012 changes.

RLegal is firm of specialist UK immigration solicitors based in central London.

If you are require assistance with a fiancé, unmarried partner or spouse case, we can be contacted through our online contact form, via email at info@rlegal.com or on 020 7038 3980.