Great article by Chris Rowe on the legality of the new minimum income requirement – Free Movement

I’ve just read an excellent analysis by Chris Rowe of the Supreme Court’s judgment on the minimum income requirement for spouses in the MM case and the prospects for bringing a challenge to the higher threshold the government is set on introducing: £29,000 in the spring and £38,700 at some indeterminate point, probably after a general election.

As Chris observes, the current threshold of £18,600 introduced in 2012 is now below the minimum wage, but it was far in excess of it at the time of introduction. On the face of it, that makes a challenge to the new thresholds look doomed. But a lot might depend on the means of challenge: by way of appeal or judicial review. An appeal on good facts forces the judge to confront the proportionality of denying family unity in the UK to a middle to low earner purely on the basis of their income. A judicial review — like MM was — allows the court to sidestep the issue with the confected test of whether the rule ‘inevitably’ breaches human rights in ‘all or nearly all cases’. That is a very hard test to satisfy.

It’s not as easy as all that given that the Home Office will concede any case with good facts. My old pupilmaster used to say that voluntary litigants were idiots. I paraphrase slightly. His point is that litigating when you don’t absolutely have to is very stressful and very expensive. And where the Home Office has concede your case already, the Home Office will argue that you shouldn’t even be allowed by the court to continue with the litigation because it is now hypothetical.