A year after the oral hearings, the Supreme Court today gave judgment in MM (Lebanon) and others v Secretary of State for the Home Department  UKSC 10. Behind the press headlines, the judgment is likely to give significant hope to couples and families unable to show earnings above £18,600 or unable to evidence it in the manner required by the July 2012 Immigration Rules.
These joined cases challenged the Rules on entry clearance which require that British citizens or settled persons must show earnings of £18,600 p.a. before their non-EEA spouse can live with them in the UK, rising to £22,400 if there is one non-EEA born child in the family and £2,400 for each additional child.
Whilst the Supreme Court ultimately accepted that in setting the Minimum Income Threshold at £18,600, the Government had not created Rules incompatible with Art 8 ECHR, overall the judgment means the Rules will need to be rewritten.
Firstly, the Court held that the Rules and policy instructions unlawfully failed to safeguard the best interests of children affected by such decisions. Secondly, the Court held that the very prescriptive manner in which earnings must be shown under the Rules could contravene Art 8, sensibly ruling that it will be for the entry clearance officers (or Tribunals on appeal) to look at the true financial picture in assessing proportionality under Art 8 in order to ensure that a fair balance is struck between the public interest in self sufficiency and the family life of a couple.
Critically, the Court held that in assessing proportionality under Art 8, despite the restrictions on evidence in the Rules, a Tribunal could examine whether families would in fact be able to show self sufficiency by any alternative sources of income, including support from their extended family, offers of employment, etc. That gives families who don't earn the Minimum Income Threshold the chance to show they can meet it from sources of income expressly prohibited by the Rules.
Navtej Singh Ahluwalia of Garden Court Chambers, Manjit Singh Gill QC of Number 5 Chambers and Tony Muman of 43 Temple Row Chambers acted for MM. They were instructed by Sanjeev Sharma of JM Wilson Solicitors.