MM (Lebanon) and Agyarko

The Supreme Court handed down judgement in MM (Lebanon) [2017] and Agyarko [2017]. Both appeals were dismissed.

Agyarko concerned foreign nationals who had formed relationships with British citizens at the time when they had no leave to remain in the UK. They did not qualify under paragraph Ex.1 of Appendix FM and a grant of leave outside the Rules was refused because it was held that there were no exceptional circumstances in either case that would justify such a grant.

The background to these cases is very important. In July 2012 a new Appendix FM was inserted into the Immigration Rules dealing with the entry requirements for non EA family members to join their relatives in the UK. It also deals with leave to remain as a partner of a British citizen in the UK or a person who is settled in the UK. It deals with the financial requirements and these are more stringent than anything which has gone before. They are called “The Minimum Income Requirement” (MIR). The Sponsor partner must have a gross annual income of at least £18,600 with an additional £3,800 for the first dependent non EA national child and £2,400 for each additional child. Only the sponsor’s earnings can be taken into account. The prospective earnings of the entering partner and any support from third parties should be ignored. Alternatively, the couple can have substantial savings of £16,000 plus 2.5 times the shortfall in the sponsor’s earnings.

Both cases came before the Court and there were claims for Judicial Review of the minimum income threshold. This threshold was challenged on the grounds that it was not compatible with the rights of the claimants and their partners under Article 8, 12 and 14 of the European Convention of Human Rights and also that it was unreasonable and ultra vires on common law principles. Before the introduction of the minimum income, the Immigration Rules required broadly that the parties would be able to maintain and accommodate themselves adequately without recourse to public funds and that included social housing and most welfare benefits, but not NHS care, Education and Social Care. This is still the criteria which applies if the applicant’s partner is in receipt of Disability Living Allowance or Similar Disability related Benefits.

The Court in reaching the decision on these two cases had to consider the inter-relationship between the Human Rights Act 1988 and the Immigration Rules.

The starting point is that any state has the right in international law to control the entry of foreigners, nevertheless this right has to be exercised consistently with the obligations of the European Convention of Human Rights. The question is not whether the host country has obligations under the Human Rights Act Article 8 but rather whether it can justify interference. There is no general obligation to respect a married couple’s choice of country in which they reside or to authorise family reunifications. It will depend upon the particular circumstances of the persons concerned and the general interests.

The United Kingdom should give significant weight to the interests of children because the UK is a party to the United Nations Convention on the rights of the child. Originally the United Kingdom entered a reservation in respect of immigration matters as far as the rights of the child are concerned, but this was lifted in 2008 in section 55(1) and (2) of the 2009 Act that requires the Secretary of State to make arrangements for assuring that their own functions in relation to immigration, asylum and nationality and those conferred upon Immigration Officers by the Immigration Act, are discharged having regard to the need to safeguard and promote the welfare of children, who are in the United Kingdom.

Appendix FM itself purports to reflect both Article 8 rights and the Secretary’s duties under section 55.

The court found that in these cases that there was no doubt that the MRI has caused significant hardship to many couples who have good reasons for wanting to stay together in the United Kingdom and with their children, but the fact that the Rules cause hardship does not mean that it is incompatible with the Convention Rights or otherwise unlawful at common law.

With regard to third party support, it was necessary to distinguish between the rationality of the approach of not taking it into account and its compatibility with the Human Rights Act, and it was agreed that what is necessary is a guidance to Immigration Officers that where the circumstances give rise to a positive Article 8 duty, a broader approach may be required and they are entitled to take into account the Secretary of State’s policy objectives but must not preclude from taking account of other reliable sources of earnings or finance. So whilst the Rules are not open to challenge there are aspects of the instructions to entry clearance officers which require revision, to ensure that all the decisions made by them are consistent with their duties under the Human Rights Act. Therefore, the Secretary of State might wish to consider whether it will be more efficient to revise the Rules themselves, or indicate the circumstances in which alternative sources of funding should be or might be taken into account.