Families will still be divided following Supreme Court ruling, but some room for hope

Legal Updates

On Wednesday morning (22 February 2017), there were a lot of people waiting anxiously for news. People who hadn’t slept all night. People who should have been sleeping because it was the middle of the night in the country they are in. A lot of these people were poised on Twitter, Facebook, getting ready for the landmark ruling from the Supreme Court in the case known as “MM”.

Families, campaigners, lawyers, had been waiting for a year for this legal judgment from the highest court in the land.

Minimum income requirement

The case was challenging the minimum income requirement that British citizens and settled UK residents have to meet in order to sponsor their spouse to join them in the UK, if that spouse is not a national of the European Economic Area (EEA). Under the immigration rules, the British citizen/settled UK resident must earn more than £18,600 per year to meet the requirement, a figure which rises to £22,400 if there is a non-British/settled child as well, and then an additional £2,400 for each further child.


Sonel Mehta of BritCits, who have campaigned on this issue for years and have a done a brilliant job of sharing the stories of families affected, wrote about the legal challenge for our blog last year:

Even those who do earn over £18,600 must engage in a protracted battle for the right to family reunification. The government wants to stop Brits marrying foreigners; if it can’t do that, it wants to stop British citizens from living in the UK with their foreign spouses, lest it dilute the mysterious ‘British values’.

If this means the family breaks up, fine. If instead it means the Brit leaves the UK to live in exile, all the better. A boon for the net migration target and UK is ridden of a stubborn citizen who chooses family over political agendas. The government sees no issue with the hypocrisy that other countries must accord their nationals the right to live with foreign family, when it chooses not to accord family reunification rights to its own citizens….

It is about blocking the Brit from claiming benefits for daring to fall in love with a foreigner – that not all Brits earning less than £18600 claim benefits, is too hard to factor in. That some of the Brits we’re taking away basic human rights from, simply because they are social workers, charity staff, baristas, security guards, for whom £18,600 is just as out of reach as if it were £100,000 – collateral damage and supposedly easily replaceable, by foreigners with no family ties to the UK. Migrants who five years down the line, after they have UK experience and have built a life here, we’ll kick out with the same disdain reserved for ‘poor’ Brits, because these migrants don’t earn the even higher requirement of £35,000 to remain in the UK.

Research from the Migration Observatory showed that the impact of the income requirement rules was clearly discriminatory: the percentage of people falling foul of the criteria is higher for women (55%), 20-29 year olds (53%), people of colour (45%) and those living outside London and the South east, with between 37% and 48% of employed British citizens not earning the required level.

The Supreme Court judgment

Along with many others, I nervously sat and watched the live stream of the MM judgment being handed down. And then I scrolled through the outpouring of heartbreak, disgust, sadness and anger on Twitter, as exiled Brits and foreign loved-ones realised the nightmare wasn’t over.

The Supreme Court found that the minimum income requirement wasn’t unlawful in principle – neither the existence of the threshold, nor the level at which it is set. This was the crux of the issue, and the ruling was certainly not the outcome that families have hoped and fought for.

The judges ruled that the right of the state to control immigration is more important than the fact the rules are discriminatory and interfere with people’s human rights.

There were some positive findings, however.

The court found that the Family Migration Rules and guidance fail to fulfil the Government’s legal duty to have due regard to children’s best interests (“section 55 best interests“) as a primary consideration in immigration decisions. The Home Office will now have to revise the rules and guidance regarding cases involving children, and it is suggested another hearing will be needed to consider these.

The judges also ruled that, where the financial requirements aren’t met through salary/cash savings, further consideration must be given to alternative sources of income.

Read the statement from JCWI – who were intervenors in the case – here, and the full judgment here.

What next?

“In one word, we are devastated” – first reactions from families as reported in The Guardian.

As affected families gathered their thoughts, it was clear that many were determined to fight on. Keep updated by following BritCits for news on where the campaign goes next.

As JCWI have pointed out, we must also ensure that the positive parts of the judgment are acted upon – quickly, and meaningfully.

And we must also look ahead, plan and be ready to protect families and communities who will be affected by these unfair and inhumane rules.

The scope of those affected may yet increase . With no guarantees about the rights for EU nationals to stay in the UK, still yet bring family members with them, many more may find themselves priced out of living with those they love in the UK.



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