MM & Ors, R (On the Application Of) v Secretary of State for the Home Department (Rev 1)

Judgment

Lord Justice Aikens:

I. The issues on appeal

These appeals concern two British citizens, Mr Abdul Majid and Ms Shabana Javed, who (obviously) have the “right of abode” in the United Kingdom and Mr MM, who has refugee status and as such has the right to remain in the UK. All three are married to spouses who do not have the “right of abode”, who are not citizens of an European Economic Area state (“EEA”) and who currently live outside the UK and wish to come and live with their spouses here. For convenience only I will give those that have the right to live in the UK the label “UK partners” and the spouses who wish to join their UK partners the rather inelegant label “non-EEA partners”. On 9 July 2012 changes were made to the Immigration Rules which, in summary, created a requirement that a UK partner who wishes to sponsor the entry of a non-EEA partner must have a “Minimum Income Requirement” of £18,600 gross per annum and additional income in respect of each child who wishes to enter the UK. Various other new income and savings requirements were also introduced. The key question on this appeal is whether these provisions are unlawful as being a disproportionate interference with the UK partners’ European Convention of Human Rights (ECHR) Article 8 rights. In effect Blake J held that they were. There are some subsidiary questions on appeal, the chief one of which is whether the provisions, which the Secretary of State for the Home Department (“SSHD”) accepts are indirectly discriminatory within Article 14 of the ECHR, can be justified.

The (“ Immigration Act 1971 the 1971 Act ”), which came into force in January 1973, remains the legislative framework that defines who has a “right of abode” in the United Kingdom and, for those who do not have that right, creates the structure for making rules on how they might obtain it on either a temporary or a permanent basis. Thus and sections 1(4) 3(2) of the 1971 Act recognise that it is for the SSHD to lay down the rules which set out the practice to be followed to regulate entry and residence in the UK for people who do not have a “right of abode”. These Immigration Rules (“IRs”) are statements of administrative policy, despite the fact that they are laid before Parliament; that is they are “an indication of how at any particular time the Secretary of State will exercise her discretion with regard to the grant of leave to enter or remain” of Section 3(2) the 1971 Act . This provides for the “negative re