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Supreme Court finds that minimum income rules for foreign spouses are lawful in principle

Children’s Commissioner responds to judgment

Commenting on the Supreme Court ruling on income rules for foreign spouses, Children's Commissioner for England, Anne Longfield, has said:

"Although the Supreme Court found that the minimum income rules [MIR] are lawful in principle, I welcome the ruling that the Immigration Rules fail to give effect to the Secretary of State's duty to have regard to the need to safeguard and promote the welfare of children when making decisions which affect them and that alternative sources of income should be taken into account when evaluating claims.

"Skype Families, my research into the immigration rules, found that many families were living apart with parents stranded in another country unable to meet the high income thresholds required. thousands of British children were being raised by a single parent in the UK as a result because their parent here did not meet the minimum income needed for their spouse to join them from outside Europe. Children were found to suffer significant stress and anxiety from the separation of their parents and I hope that the Supreme Court's finding allows more British children to be raised by both their parents in stable, loving, family environments."

In four appeals the appellants claimed 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 was 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 was against the refusal of entry clearance because of a failure to meet the MIR on the facts of her case.

The Supreme Court found unanimously that the MIR is acceptable in principle but that the Rules and the Instructions fail unlawfully to give effect to the duty of the Secretary of State under section 55 of the Borders, Citizenship and Immigration Act 2009. The Instructions also require amendment to allow consideration of alternative sources of funding when evaluating a claim under article 8.

For the judgment, click here. For a summary, click here. For the Children Commissioner's Skype families research, click here.

22/2/17