The recently announced plan to increase the minimum income requirement (MIR) to £38,700 led to widespread criticism, with the government appearing to exclude all but the affluent from establishing family life in the UK. This has led to a partial policy shift, with it now announced that the threshold to sponsor a spouse will not rise to this amount until 2025, with an interim rise to £29,000 taking place in the Spring. Nonetheless, even this lower amount will be unaffordable to many families, raising questions about the compatibility of the rise with Convention rights. In R (MM) Lebanon v SSHD [2017] UKSC 10 the Supreme Court found that the initial MIR, set at £18,600, was lawful. In this post, I will highlight two key problems with the judgment, along with the failure of the MIR to restrict the social security entitlement of many affected families: the MIR’s primary justification.
At first glance, MM is not an encouraging precedent. Whilst an MIR at £18,600 may seem reasonable today, given that it is a bit less than the annual pay of a full-time job at the minimum wage, when introduced in 2012 it was significantly higher than the minimum wage (circa £11,500 annually), with an estimated 47% of in-work adults earning less. If an MIR with this impact has already been found to be lawful, it is far from obvious why excluding a further 20-25% of in-work adults, as per the originally announced rise, would make much difference legally. Second, the court made strong observations on the importance of showing deference to the government in this area: that immigration control is ‘intensely political’, the ‘constitutional responsibility of the Secretary of State’ and should be treated as ‘high policy’ etc. Third, notwithstanding the recent Rwanda decision, if a policy was unanimously found Convention compatible by a seven judge panel including Lords Kerr and Wilson, whilst the judgment was jointly given by Lady Hale and Lord Carnwath, few will be optimistic of a different outcome given the current roster on the Supreme Court.
Yet, MM should be a notorious case, casting some doubt on the progressive credentials of these popular judges. The most important aspect of the case is that whilst the court upheld the legality of the MIR, it did not actually find that the MIR was proportionate when applied to a typical low-income citizen (eg like Mr MM, in full-time work and earning a bit more than the minimum wage at the time), but avoided engaging with this question, although this was the purpose of the challenge. The claimants had directly brought a judicial review, rather than the more common approach at the time of (initially at least) directly applying for a visa. This was sensible, since the claimants did not want to waste the expensive visa fee (which had started to escalate rapidly), whilst even in the very unlikely event that they were granted entry on human rights grounds – the policy of the government at the time was that this would be ‘rare’ – they would have been placed on the longer 10 (rather than 5) year route to settlement, incurring considerably greater visa renewal fees and other detriments.
Moreover, it would be hard to see why anything would turn on this choice by the claimants, since regardless of the nature of the initial challenge a senior court would be expected to focus on the compatibility of the rule in general, rather than conducting a fact specific enquiry into the claimant’s individual circumstances (as per the approach in the well-known case of R (Quila) v SSHD [2011] UKSC 45, in which the claimants had also received visas/leave to enter (LTE) prior to their claim reaching the Supreme Court). At the Administrative Court, the fact that a judicial review had been brought without an initial LTE application was not an issue, with the judge holding that the MIR would generally be disproportionate when applied to British citizens earning the minimum wage or above.
Yet, the Supreme Court in MM decided that the only way a direct challenge to the Convention compatibility of an immigration rule could succeed was if the rule would ‘inevitably’ be incompatible in ‘all or nearly all cases’. Since an immigration rule, given its subordinate legal status, can be disapplied by the Secretary of State, a rule will not inevitably lead to an incompatible outcome in a single case, let alone all cases. As the court pointed out, this test provided a ‘simple answer’ to the challenge, which obviously failed.
Much can be said about the ‘all or nearly all cases’ test, which has haphazardly spread from challenges to the immigration rules to other policy areas (eg at the Supreme Court in Christian Institute v The Lord Advocate(Scotland) [2016] UKSC 51, and McLaughlin (Northern Ireland) [2018] UKSC 48: for in depth discussion of the test see here). Use of the test has created the constitutionally curious position that the control the courts exert over guidance issued by public authorities is now more stringent than over legislation (and quasi-legislation like the immigration rules), since in the former context they employ ‘a significant number of cases’ test. In the immigration context, the ‘all or nearly all cases’ test poses a serious challenge to the rule of law, since it means that the immigration rules are effectively non-justiciable. Whilst they can be disapplied in individual cases, a rule can never be quashed or declared unlawful by a court – at least, on proportionality grounds. On the Supreme Court’s reasoning, there is no income threshold which would be unlawful on the basis of proportionality, even if the requirement was set at a level which was more than the amount earned by any single individual in the UK, since the rule can always be disapplied to individuals earning less. Yet, given this, how can a citizen rely on the immigration rules as a guide to their actual rights to family reunification? If they cannot, how can this be compatible with the rule of law or, as per Article 8, in accordance with law? Particularly when the high visa fees – currently £1,846 for a leave to enter application – strongly disincentivise claims by families which do not meet the stated rules.
The test, as such, is absurd and should be rejected. Yet, if the court wants to continue to apply it in proportionality-based challenges to the immigration rules, then it can be easily avoided in litigation to challenge the new MIR. Rather than bringing a claim through judicial review, the new MIR should be initially challenged via immigration tribunals, with test cases found where the claim is based solely on the disproportionality of the new MIR when applied to a low or middle-income earner, with no other distinguishing features relevant to an Article 8 proportionality assessment (eg that a person cannot relocate to their partner’s country because of a child from a previous relationship in the UK or a sickly parent they care for etc). Soon enough, a senior court will be forced to determine whether the government can justify its interference with Article 8 rights by denying family reunification to a British citizen in full-time work on a low or middle-income. If such a claim succeeds, and the Home Secretary attaches more importance to the rule of law and good administration (in this context) than Lady Hale and Lord Carnwath did, then we might expect the MIR to then be changed to the level of the minimum wage (or whichever level case law establishes that the threshold will be proportionate).
Determining proportionality
Will though the new MIR be disproportionate when applied to low and middle-income citizens? The justification for the initial MIR was primarily that it would prevent the migrant spouse becoming a ‘burden on the state’, through increasing social security entitlement. The £18,600 threshold was identified by the Migration Advisory Committee. I have previously argued that the Committee made a significant error, since whilst it recognised that the migrant spouse would have no independent social security entitlement until acquiring Indefinite Leave to Remain (ILR), it mistakenly held that the spouse could indirectly increase the entitlement of their British citizen partner at the LTE and Leave to Remain stages (eg because the amount a tax credit recipient is entitled to increases if they move in with a partner).
Unfortunately, the Supreme Court’s judgment displayed even less understanding of the core principles of social security law: even though the justification for the MIR was to prevent the spouse increasing social security entitlement, the Court decided that although the MIR was lawful, people should be able to rely on the promise of gifts and financial support (eg from a parent) to reach the MIR threshold. However, such promises and gifts generally do not reduce social security entitlement (and the existing savings rule had been designed in such a way as to enable gifts to count in circumstances which would likely reduce such entitlement – ie any money would be under the sponsor’s control for at least six months and, combined with their own savings, exceed £16,000: the point at which social security entitlement is generally precluded). In effect, the court decided that human rights law means that whilst a working-class person in full-time work on the minimum wage, contributing to society and with no benefit entitlement, has no right to live in the UK with their partner, someone unemployed and claiming benefits but with affluent parents, willing to credibly promise to give them £18,600 a year, does have a Convention right to do so.
At present, we do not know exactly how the government will seek to justify the new MIR in any future litigation. For now, the justification given to the media and the public is similar to that of the initial MIR, with claims that family life must ‘not be established here at the taxpayer’s expense’, whilst the current MIR ‘no longer reflects the level of income required by a family to ensure they are self-sufficient and do not need to rely on public funds.’ If what this means concretely is that the household should have no access to welfare benefits both before and after the grant of LTE to a spouse (ie the sponsoring partner is not in receipt of any benefits prior to entry and no access will accrue after their partner joins), then in many cases this type of ‘reducing access to benefits’ policy aim is unlikely to provide a strong justification for interfering with Article 8, given the minimal impact that family reunification has on social security entitlement.
There is no space in this blog to provide a detailed analysis of how social security law interacts with granting leave to a migrant spouse. Under the Universal Credit (UC) rules, now the main form of social security support, it is explicit that the presence in the UK of spouses without ILR can only reduce and not increase social security entitlement: this is because (as well as such persons being unable to claim in their own right) when a UK citizen forms a family unit with a spouse without ILR, UC ignores their presence when calculating any entitlement (ie it treats the household as a single adult household), whilst any earnings or savings the migrant spouse has will count towards determining household income and so reduce the amount of support accordingly.
Moreover, in general, working childless households in the UK have no entitlement to social security benefits in the UK unless (a) they rent, (b) if a single person household, they are aged over 35, (c) their savings are limited, and (d) household income is not much more than the annual minimum wage – it is difficult to be more specific, since entitlement is primarily affected by rental costs, with the amount of support provided varying across the country (as well as increasing once single adults reach 35). If, however, they rent in London, due to exceptionally high housing costs, even a single adult household in which the person is aged over 35, earning above the new MIR, eg £40,000 a year, can be entitled to some UC. All households with children affected by the new MIR (at both levels) will be entitled to child benefit, whilst, particularly if they rent, they will likely have some entitlement to UC throughout the country.
The legal position has also changed since MM was decided (the litigation commenced in 2012) with the passing of the Immigration Act 2014 s117 public interest requirements, which apply to courts and tribunals when deciding Article 8 claims in immigration cases, including that it is ‘in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent’. In Rhuppiah v SSHD [2018] UKSC 58, the Supreme Court decided that what this means is ‘an absence of financial dependence upon the state’, so the claimant, who did not work and was financially dependent upon a friend, was still financially independent per the statute since she did not have any social security entitlement. The court rejected the interpretation of Sales LJ in the Court of Appeal that the section means financially independent from other people, questioning how this could be in the public interest, since the public interest is served when people are not a burden on taxpayers.
The judgment likely has beneficial implications for some families affected by the new MIR (albeit arguably less so for families with children). It means that the government will now have to justify interfering with the Convention rights of the great many sponsors who are, as per the Act, ‘financially independent’: likely a large majority of childless couples who are not in receipt of welfare benefits and will not be in receipt of any if their partner is granted leave. The new MIR as such appears to cut across Parliament’s intention in passing s117b in respect to the financial considerations relevant to family reunification and human rights law: for Parliament the public interest lies in excluding families which have or will have access to welfare benefits, yet the government will have to argue that the public interest requires excluding families that have no such access.
Conclusion
The justification for the new MIR at either level is not strong. It excludes from the UK spouses who can only reduce the social security entitlement of their family on the ground that they will be burden on taxpayers. It even excludes spouses whose families do not have any social security entitlement to begin with. The MIR rise provides the courts with the unusual opportunity to employ human rights law to challenge an (at least fairly) unpopular immigration policy and confer a significant benefit on working and now middle-class British citizens, whose only ‘wrong’ is to do jobs which do not pay (if the rise to £37,800 goes ahead) in the upper income quartile. Wouldn’t it be a nice change to read some stories about how human rights law came to the rescue of ‘law-abiding and hard-working citizens’ like Mrs Obiol, rather than (even if the details can be quibbled with) the usual malefactors?