R (on the application of MM (Lebanon)) (Appellant) v Secretary of State for the Home
R (on the application of Abdul Majid (Pakistan)) (Appellant) v Secretary of State for the Home
R (on the application of Master AF) (Appellant) v Secretary of State for the Home Department
R (on the application of Shabana Javed (Pakistan)) (Appellant) v Secretary of State for the Home
SS (Congo) v Entry Clearance Officer, Nairobi (Respondent)  UKSC 10
On appeals from  EWCA Civ 985,  EWCA Civ 387
JUSTICES: Lady Hale (Deputy President), Lord Kerr, Lord Wilson, Lord Reed, Lord Carnwath, Lord Hughes, Lord Hodge
In July 2012 the Immigration Rules (‘the Rules’) were amended to establish new entry requirements for non-EEA applicants to join their spouses or civil partners in the United Kingdom. These included a minimum income requirement (‘MIR’) of at least £18,600 per annum with additional sums for dependent children, to be satisfied by the sponsoring spouse or civil partner.
In four appeals the appellants claim that the Rules themselves, and the Immigration Directorate Instruction on family migration giving guidance to entry clearance officers (‘the Instructions’), are incompatible with the rights protected by the European Convention on Human Rights (ECHR), principally the right to family life in article 8, and unlawful under common law principles. One of the appellants is a child, and it is contended that the Rules fail to take account of the Secretary of State’s duty under section 55 of the Borders, Citizenship and Immigration Act 2009 (‘the s 55 duty’) to have regard to the need to safeguard and promote the welfare of children when making decisions which affect them. The fifth appeal, brought by SS, is against the refusal of entry clearance because of a failure to meet the MIR on the facts of her case.
The claims to strike down the Rules partly succeeded in the High Court, but this decision was reversed by the Court of Appeal. SS appealed successfully against the refusal to grant her entry clearance to the Firsttier Tribunal, which found that she and her husband would not be able to live together in the Democratic Republic of Congo, where she was a citizen, but from which he had been granted asylum in the UK. He could not meet the MIR but the refusal was found to be a breach of article 8. The Entry Clearance Officer’s appeal failed in the Upper Tribunal but was allowed by the Court of Appeal.
The Supreme Court unanimously (i) allows SS’s appeal, restoring the decision of the Upper Tribunal in her case, and (ii) allows the other four appeals to a limited extent. The court holds 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. Lady Hale and Lord Carnwath give a joint judgment, with which all the other Justices agree.
Challenge to the validity of the Rules under the Human Rights Act 1998 (‘HRA’)
The principle of an MIR
Treatment of children
Treatment of alternative sources of funding
Appeal by SS
References in square brackets are to paragraphs in the judgment
This summary is provided to assist in understanding the Court’s decision. It does not form part of the reasons for the decision. The full judgment of the Court is the only authoritative document. Judgments are public documents and are available at: http://supremecourt.uk/decided-cases/index.html