In a recent judgment the UK Supreme Court upheld a law requiring that a UK citizen earn a minimum level of income in order to bring their non-UK/EU partner to live with them in the UK. The court accepted that this led to “significant hardship” which impinged upon their human right to family life. However, this was held to be justifiable on the grounds of the state’s “interest in ensuring that the couple do not have recourse to welfare benefits and have sufficient resources to be able to play a full part in British life." The law and its vindication are significant as statements of how the state views the citizen, prioritising their economic value over their freedom, revealing the attitude of state to citizen not to be one of love.
Common to many of the descriptions of love across theology, philosophy, psychology and literature is the idea of a shared desire by the lovers for togetherness which affirms the nature of each. St Augustine praises a loving obedience to God which results in a union with God; Plato talks both of separated forms searching for their other half and a more stoic desire for the completeness of knowing beauty; Fromm described a paradoxical union which both unites individuals and preserves their individuality; and similarly Nussbaum describes romantic love in Joyce’ Ulysses as both desiring another and fostering their freedom.
Human rights recognise and protect the capacity of individuals to freely choose how to live and through doing so define their identity. A relationship of love is a deep manifestation of a person’s identity, because it expresses a choice of with whom to unite their identity and to foster the other’s identity.
Although the Supreme Court’s judgment did not question the love of the partners, it also gave it no weight. The court declined to balance the rights of those separated from their partners against the competing political choices of others that tax revenue not be spent on non-UK/EU partners and for integration. The court accepted that this balance was for the secretary of state to judge, and therefore upheld the minimum income rules. The judges washed their hands of the decision on the grounds of deference to political judgment, even though the rights claim at issue concerned a choice at the very heart of the individual’s identity.
This judgment is particularly submissive to the government’s policy as the countervailing justifications given for the rules are week to the point of being disingenuous. Against the concern to ensure that a citizen’s partner does not become a burden on the welfare state, it must be recognised that the courts have never held that the state must provide welfare assistance to all individuals: the closest thing to a right to welfare in the UK is a requirement that the state must not actively legislate to render an individual destitute. Similarly, being barred from entry into the UK is a greater barrier to social integration than lack of money. The intention behind the minimum income requirement is purely a desire to reduce immigration. This reveals the attitude of the state to its own citizens; the state is not concerned with maximising the freedom of the individual to choose how to live, it shows no desire to be united with its citizens or concern for their flourishing, to which the presence of their partners is essential. Rather it values them only to the extent that they contribute monetarily.
St Augustine wrote in the 5th Century that a society which is not grounded in a love which desires the free flourishing of all individuals is inherently unstable, and can be kept together only by visions of power or fear of external neighbours. The Supreme Court in this case saw themselves bound by their constitutional position, but by showing deference when asked to protect the heart of human freedom they weakened the claim of our society to be one grounded in the value of individual freedom of choice as to how to live, or love.
R (MM) v Secretary of State for the Home Department  UKSC 10, the judgment discussed in this article, can be found here.
Dr Benedict Douglas lectures at Durham Law School and researches the implications of the moral bases of human rights for their judicial interpretation and place within the UK Constitution. He is currently writing on the role of love in rights interpretation.