Legal Cheek Journal

The MM case: Long distance couples challenge the ‘anti-love law’

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By Katie King on

Supreme Court ruling could lead to an influx of immigration

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This week, the Supreme Court will be hearing the important case of MM, a case that holds the potential to fundamentally change UK immigration law.

The case deals with a niche area of law that has niggled away at long distance couples since it was enacted in 2012: the minimum income requirement in immigration law.

Under domestic law, a UK national is only able to bring their non-European Economic Area partner into the country if they earn £18,600 a year or more. This figure steadily increases if there are dependent children involved.

Since the get-go, the minimum income requirement has come under attack from scathing critics. The average wage of a host of low paid jobs — chefs, florists, hairdressers and hospital porters, for example — fall well below the requisite minimum figure, and it has been estimated that 45% of people don’t earn that sort of money.

Others say that the rule does not take regional or gender driven wage differences into account. The percentage of women not eligible to sponsor a third country national partner is nearly twice as high as the number of men, while figures fluctuate between 30% and 51% dependent on where in the country the partner lives.

Campaigners have also been at pains to point out that it is only the UK national’s income that counts — not the foreign spouse’s, nor promised financial help from parents or other third parties. This means that if a millionaire married an English cleaner (in receipt of an average salary), then he or she wouldn’t be allowed in, regardless of the contribution his or her wealth would make to the economy.

It’s intrinsically unfair — and even the High Court wasn’t convinced that the rule stood up to scrutiny. In a judicial review challenge brought by two British nationals and a refugee, the court found that the law’s interference with citizens’ rights was “very significant”. Though stopping short of striking down the rule as unlawful in general, Mr Justice Blake commented:

The consequences are so excessive in impact as to be beyond a reasonable means of giving effect to the legitimate aim.

He gave a list of “less intrusive” ways that the financial requirement could be applied, including “reducing the minimum income required of the sponsor alone to £13,500”.

Despite this early success, in 2014 the decision was overturned in the Court of Appeal, and is now being heard by an unusually high number of justices — Lady Hale, Lord Kerr, Lord Wilson, Lord Reed, Lord Carnwath, Lord Hughes and Lord Hodge — a firm nod to the case’s importance.

This is the court’s chance to signal a thumbs down to the minimum income requirement, the question for the justices being this: is the rule a breach of Article 8 of the European Convention on Human Rights, unlawfully discriminatory and/or irrational?

Surely, the answer can only be yes. The impact on family life is undeniably detrimental.

Saira Grant, chief executive of the Joint Council for the Welfare of Immigrants, intervening in the case, explained:

An estimated 15,000 children in the UK are currently growing up without one parent as a direct result of these financial requirements. Children are being forced to grow up in ‘broken homes’ with serious consequences for their emotional and mental health.

While this is no doubt an unintended consequence of the 2012 amendment — the brainchild of the Coalition government — the rule proves so intolerable that some sneaky couples have craftily devised a way around it.

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It works like this: other European countries, like France, don’t impose an £18,600 minimum earnings requirement, so the UK national and their third country national partner can go live there. If they work in this European country for three months, then they can be considered under EU free movement law instead of national law, and can enter the UK together on this technicality. This is known as the Surinder Singh route — named after the 1992 case that gave this method a legal backing.

On first reading it looks like a dodgy legal loophole, but there’s a wealth of interesting stories from happy couples that have managed to take advantage from it.

But it doesn’t work for everyone, and the fact that around 20,000 non-European Economic Area family members enter the UK in this way is surely a signal to the government that the minimum income requirement, termed the “anti-love law” by the Refugee Council, is in need of a make-over.

It’s certainly beginning to take its toll on the loved up couples that it keeps apart.

Though the hearing isn’t yet finished, the Supreme Court has so far been told by the appellant’s barrister — Manjit Singh Gill QC from No5 Chambers — that the threshold is the highest in the world second only to Norway, a country with a high minimum wage. In relative terms, therefore, we demand the highest threshold in the world.

He told the court:

For many, £18,600 is completely unachievable. It is not like the case of the English language test where you can put in so many hours. This is effective for life, for half the British population. Parliament cannot have intended the law to be used in that way.

He described the “absurdity” of the Surinder Singh route as “quite staggering”, adding:

People being forced to leave the country and then come back. What on earth is the point of doing that?

The hearing finishes tomorrow, and we can expect to wait up to six months for a ruling. No one knows what the justices will decide, but the message from the lawyers is quite clear.

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