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    Judgement in the MM case

    Latest update: 23 June 2017

    We are pressing the Home Office for revised guidance following the MM Supreme Court ruling. We've received a reply to say they are still considering how best to implement the findings of the court. We will continue to press for a timely resolution to this with new guidance and the return of decision making in outstanding cases.

     

    MM and Ors V SSHD [2017] UKSC 10


    After over a year of waiting the Supreme Court has this morning (22 February) handed down its decision on the legality of the minimum income requirement (MIR) of £18,600.

    A brief summary of the findings of the Court’s unanimous decision are set out below:

     

    1. The Court breaks down the issues into three heads (para 79):

     

    i. The principle of a minimum income requirement (para 80 -87)

    ii. The treatment in the rules and instructions of children; (para 88 – 92)

    iii. The treatment in the rules and the instructions of alternative sources of funding. (para 93- 101)

     

    2. The Court agrees with both the Court of Appeal and the Administrative Court that there is no issue in respect of discrimination under article 14 (para 78).

     

    3. The Court found our challenge to the existence of a MIR in principle and the argument that there is no rational connection between the Secretary of State’s legitimate aim and the MIR, must fail. The Court states that the Secretary of State is pursuing a legitimate aim and the MIR is part of an overall strategy aimed at reducing net migration. The Court rejects the view that there is no rational connection between the aim and the particular income threshold chosen. This aim is distinguished from Quilla, as there was no immigration dimension unlike this case (para 82).

     

    4. The Court did accept our argument that the MIR and the instructions fail unlawfully to give effect to the duty of the Secretary of State under section 55 of the Borders, Citizenship and Immigration Act 2009 (para 109). This is considered in detail at paras 88 to 92.

     

    5. The Court also found the current instructions to the MIR are inadequate and has invited the Secretary of State to put forward amendments to the current instructions to the MIR in accordance with the law as set out by the Court in their decision (para 110).

     

    6. In terms of alternative funding, namely prospective earnings of the foreign partner or guarantees of third party support (para 93), the Court finds that it is open to the Secretary of State to indicate criteria by which reliability of such sources may be judged, but not to exclude them altogether (para 100).

     

    7. The Secretary of State has been invited to revise the rules themselves rather than the instructions to entry clearance officers, to indicate the circumstances in which alternative sources of funding should or might be taken into account.

     

    There is now some light at the end of the tunnel to those families that have been separated by allowing alternative sources of income and even more so if there are children involved.

     

    We look forward to hearing from the Secretary of State as to what she proposes to do in light of the decision.

     

    JM Wilson Solicitors

    22nd February 2017

     

    Link to the Supreme Court Judgement

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