Tag Archives: rights of child

#MMCase has been ruled – Minimum income requirement here to stay

What is the MMCase Minimum Income Requirement ruling?

divided spousesThe Supreme Court has just handed down its judgment in the #MMcase – Minimum Income Requirement.  It has ruled in favour of the government in principle.  That is that it is entirely legitimate for ministers to use income rules to control immigration.  They validated this by adding that minimum income rules have been ruled by the ECtHR to be compatible with human rights.

However, please do not let this disappointment relating to the mmcase minimum income requirement get you down.  because…

UK Government have breached the rights of kids for years

The Supreme Court didn’t just answer the question as to whether the MIR (MMCase Minimum Income Requirement) was lawful.  The court went onto note that the rules have been poorly applied in relation to rights of children.  The court has stated that the rules fail to adequately incorporate the Home Office’s S.55 BCIA duty into the framework/rules.

91.              In our view the instructions in their present form (quoted at para 24 above) do not adequately fill the gap left by the rules. Rather than treating the best interests of children as a primary consideration, taking account of the factors summarised in Jeunesse, they lay down a highly prescriptive criterion requiring “factors … that can only be alleviated by the presence of the applicant in the UK”, such as support during a major medical procedure, or “prevention of abandonment where there is no other family member …”. It seems doubtful that even the applicant in Jeunesse itself would have satisfied such a stringent test. Furthermore, although section 55 is in terms directed to children in the UK, the Secretary of State has accepted that the same approach should be applied to the welfare of children elsewhere (see para 46 above).

92.              We have no doubt therefore that the guidance is defective in this respect and needs to be amended in line with principles stated by the Strasbourg court. Furthermore, the statement in GEN.1.1 that the duty has already been taken into account in the rules is wrong in law. Nor is the gap filled by GEN.1.10-11 which refer to the separate consideration under article 8, but not section 55. This is not simply a defect of form, nor a gap which can be adequately filled by the instructions. The duty imposed by section 55 of the 2009 Act stands on its own feet as a statutory requirement apart from the HRA or the Convention. It applies to the performance of any of Secretary of State’s functions including the making of the rules. While the detailed guidance may be given by instructions, it should be clear from the rules themselves that the statutory duty has been properly taken into account. We would grant a declaration that in this respect both the rules and the instructions are unlawful.

It also notes that the rules fail to do a proper assessment of a couple’s income.

[2017] UKSC 10 goes on in Para 100 to note that the case workers have a positive article 8 duty to take into consideration other funding sources ETC.

100.          As already explained, we do not see this as an issue going to the legality of the rules as such. What is necessary is that the guidance to officers should make clear that, where the circumstances give rise to a positive article 8 duty in the sense explained in Jeunesse, a broader approach may be required in drawing the “fair balance” required by the Strasbourg court. They are entitled to take account of the Secretary of State’s policy objectives, but in judging whether they are met, they are not precluded from taking account of other reliable sources of earnings or finance. 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.

So what does this mean now?

It looks like we’re stuck with the MMCase Minimum Income Requirement (#MIR).  However, at least this latest ruling reinforces the well known fact (which has been ignored by the Home Office for years) that when you’ve got kids, further protections / considerations have to be taken into account.

This point is something that I have personally argued for years.  The Home Office have for far too long brushed the needs of kids aside.  We are all aware that a child needs two loving parents, yet government officials believe that they can decide what a child needs is different to what children actually need.

External Links

You can view more information relating to the MMCase – [2017] UKSC 10  on the Supreme Court’s website.