Supreme Court rules on minimum income requirement and Appendix FM rules in R (on the application of MM (Lebanon)) (Appellant) v Secretary of State for the Home Department (Respondent)

In its long-awaited judgment handed down today, the Supreme Court has dismissed the appeals in the MM (Lebanon) cases.  These were a series of conjoined cases challenging the £18,600 minimum income requirement ('MIR') introduced in July 2012 as part of 'Appendix FM' to the Immigration Rules, along with the the Immigration Directorate Instruction on family migration giving guidance to entry clearance officers ('the Instructions').  The claims to strike down the Rules partly succeeded in the High Court but were reversed by the Court of Appeal.

The Supreme Court held that the MIR is "acceptable in principle but that the Rules and the Instructions unlawfully fail to take proper account of the s 55 duty. The Instructions also require amendment to allow consideration of alternative sources of funding when evaluating a claim under article 8."

Of particular note are the following points:

The Rules assert that the Secretary of State’s s 55 duty has been taken into account but nothing in the relevant section gives direct effect to it [90]. The Instructions in their current form do not adequately fill the gap left by the Rules. They are defective and need to be amended in line with the principles established by the ECtHR. The s 55 duty stands on its own and it should be clear from the Rules themselves that it has been taken into account. In this respect the Supreme Court grants a declaration that the Rules and the Instructions are unlawful [92].

Operation of the restrictive approach on evidence of alternative sources of income outside the Rules was held to be inconsistent with the evaluative exercise required by article 8. "A tribunal on an appeal can judge for itself the reliability of any alternative sources of finance and it makes little sense for decision-makers at an earlier stage to be forced to take a narrower approach [98]." "In this respect aspects of the Instructions require revision to ensure that decisions are taken consistent with the duties under the HRA. It will be a matter for the Secretary of State to decide if it is more efficient to revise the Rules themselves to achieve this [101]."

You can read the full judgment here: https://www.supremecourt.uk/cases/docs/uksc-2015-0011-judgment.pdf