A Rather Cruel Piece Of Mockery: Part 2

th-37MM, R (On the Application Of) v The Secretary of State for the Home Department [2013] EWHC 1900 (Admin) (05 July 2013) 

SSHD’s Case

In light of Qulia, Chapti and Bibi, Blake J explained (at [86]) that the application of the maintenance requirements in individual cases amount to an interference with the right to respect for family life: The important question, however, remained whether the interference is for a legitimate aim, proportionate to the aim and justified.

The SSHD based her case on the consultation on family migration rules, MAC’s advice, impact assessment connected to the rules, her statement of intent on Article 8 and the rules, Parliamentary approval of the rules and the evidence of Clive Peckover (a senior civil servant). The government argued that the measures were justified and proportionate to the aim because (a) they assessed economic policy in which the courts accorded the executive a wide margin of discretion 
(b) none of the criteria adopted were blatantly discriminatory on the grounds of race, religion, gender, disability or other protected grounds (c) in respect of the measures having indirect discriminatory impact on women, lower income households, members of ethnic minorities or others, sufficient consideration had been provided to this differential impact in the process of consultation and policy formation (d) 
special rules applied for the admission of pre-flight spouses of refugees, the disabled, the families of service men and some other special categories (e) the right at issue was a limited one; couples could not choose the UK as their place of matrimonial residence and the right was secondary to the right to marry concerned in Baiai or the measures taken to control forced marriages considered in Quila
 (f) since Quila there have been other cases in judicial review where something closer to a Wednesbury rationality test has been held to satisfy the requirements of proportionality where human rights issues are raised and 
(g) the court should therefore assess proportionality by a test closer to Wednesbury unreasonableness.

Against that the claimants argued that social and economic evidence demonstrated that Asians and Africans suffered under the rules: especially women sponsors with lower earnings than men, people from urban centres outside London and the South East and refugees.

Conclusions

Finding the issues “challenging” and representative of the agitation between sensitive issues of policy and the enjoyment of a fundamental human right, Blake J accepted that the SSHD is to be afforded a wide margin of appreciation or discretionary area of judgment in respect of immigration (at [94] – [96]). Moreover, his lordship said (at [95]) that his judgment demonstrated:

[H]ow judicial decisions in this contentious area of policy endeavour to navigate a course between the Scylla of improper intrusion into the sphere of executive policy where Parliament has set few overt restrictions on the exercise of the power and where it has approved the policy itself and the Charybdis of undue deference to policy measures not incorporated in primary legislation that seriously interfere with the ability of couples to live together in the United Kingdom where one party to the marriage is from abroad.

Refugees – such as MM – chose to live abroad out of fear of persecution: they were not voluntary migrants (at [99]). British citizens – such as AM and SJ – possess the independent right to reside in their own country and their inability to continue to reside in the country of their nationality because of the exclusion of a genuine spouse interferes with that right of residence but “British citizens cannot expect their future enjoyment of family life to be entirely at the expense of the tax payer” (at [100]).

The present rules are construable as not forbidding any of the claimants from residing in the UK or indeed preventing them from marrying anyone they choose. Compared to Baiai, the instant cases did not restrict the right to marry on its own. Although the Strasbourg Court explained that the right to marry does not carry with it a right to respect for a choice of matrimonial home, Blake J – who accepted that the rules did not forbid the claimants from living in the UK or marrying the person of their choice – nonetheless found (at [101]) it difficult to exercise the associated right to found a family where serious obstacles to matrimonial cohabitation exist.

Blake J said despite Abdulaziz the Supreme Court’s decision in Quila clarified that “a rule restricting admission of a spouse is an interference with family life itself” and old domestic Article 8 case law on excluding spouses should be approached “with some caution” (at [102]). Whilst the pre-Quila focus was related to positive duty to admit the foreign spouse, the current question “is whether the state can justify the exclusion of the spouse as necessary and proportionate in pursuit of a legitimate aim”: old authorities were also suspect because older versions of the rules were drafted loosely whereas the present rules clearly intended to accommodate Article 8.

Blake J followed the Court of Appeal’s approach in Quila that three separate rights were at stake: the fundamental right of the sponsor to reside in the UK without let or hindrance (“an indefeasible right of abode” per Sedley LJ at [5]), a right for such sponsors to both marry and found a family (“a constitutional right to marry” per Sedley LJ at [5]), and a right to respect for the family and private life created as a result of the exercise of the two previous rights. So the interference was threefold. Conscious that in Quila the Supreme Court did not distinguish between British citizens and others in deciding whether the rules against forced marriage were justified, Blake J held (at [104]) that British nationality was decisive in the instant case because denying admission to the spouse under the rules is synonymous with expecting the citizen sponsor to exit the UK to enjoy family life and matrimonial cohabitation. Even in the absence of insurmountable obstacles expecting a British citizen to do so is – following Pitchford LJ at [72] in Quila – a serious interference (requiring “compelling justification”) with the right of residence. Blake J’s decision was supported by Strasbourg jurisprudence (Boultif v Switzerland) on the importance of nationality in Article 8 assessments, the CJEU’s jurisprudence (Carpenter and Chakroun) on how denying admission to a spouse undermines the right of the sponsor to reside and Maurice Kay LJ’s observation in Bibi that in BVerwG 10 C 12.12 the German Bundesverwaltungsgericht found that the spouse of a German national should not be kept waiting for more than a year by the application of the pre-entry test.

Blake J held (at [106]) that in terms of constitutional significance the indefeasible right of British nationals to reside in their own country could not rank lower than the contingent right of an EEA “qualified person” to reside in another state while exercising treaty rights. The Court enumerated (at [107]) ten points – such as MAC accepting that on 2009 data 45% of sponsors fail on the financial requirements, the length of the leave granted when the spouse is first admitted, the setting of an income figure much higher than the national average (that too in a deteriorating economic climate), the difficulties confronted by poorer ethnic minorities/female sponsors, the exclusion of the spouses future earning power from the equation, lengthy antecedent working requirements for sponsors and the removal of third party support etc – and Blake J found that the requirements “amount to a considerably more intrusive interference than the ‘colossal’ interference deriving from the minimum age rule in Quila or indeed the basic language test in Chapti” (at [108]).

Those whose entry clearance was delayed for three years under the pre-Quila age limit (21 years) could rest assured that time would ultimately pass. However, sponsors’ ability “to earn £18,600 per annum gross or have accumulated £16,000 or more in savings is neither assured nor even reasonably likely at the age of 21” (at [108]). In contrast to the pre-entry language requirement – not connected to economic conditions – which the Court of Appeal in Bibi considered superable, sponsors are unable to find stable employment let alone have an influential say on pay.

For Blake J, the measures set out in the rules had a legitimate aim and were rationally connected with the aim because the SSHD had a right to promote economic and social welfare and social integration by insisting on standards “that require spouses to be maintained at a somewhat higher level than the bare subsistence level set under previous interpretations of the rules” (at [110], Chapti, Bibi and KA applied: Quila distinguished (at [111]) as the legitimate aim in the instant case “is firmly within the field of immigration policy”).

I. Discrimination

Similarly, Blake J was not satisfied that it was demonstrable “that the rules are unlawfully discriminatory taking Article 8 and Article 14 together” (at [112]). The SSHD enjoyed broad discretion in setting immigration policy and the courts needed to respect a wide margin of appreciation because of the consultation and Parliamentary scrutiny received by the rules. Moreover, although “[n]o overtly discriminatory criteria are used”, given the legitimate aim of the measures is directed at low income migrant families it is inevitable that they would be disproportionately affected (at [113]). Although women sponsors (one third of the total) and those outside the South East suffered more immigration remained a “national matter” and so it was “both impractical and inappropriate to make provision for such differential impact in the immigration rules themselves” (at [114]).

II. Children’s Welfare

Blake J was not persuaded that the lack of an over-riding duty aimed at securing the best interests of children within the maintenance provisions of the rules rendered them unlawful. For his lordship, despite constituting a further barrier to entry, it is reasonable (at [115]) to expect further funding where non-British children are entering the UK in addition to a spouse. AM’s complaint – that he needed to meet the rules’ financial requirement to obtain his wife and child’s admission whereas no such minimum requirement existed were his wife admitted alone to look after her children in the UK – of irrationality, discriminatory treatment and/or disproportionate interference with family life did not “compare like with like” (at [116]). The Court explained that cases where it is in children’s interests that they should admitted to join a parent or carer (and there is adequate accommodation and no additional recourse to public funds) are materially different from cases where such children living abroad have a parent or step parent to care for them.

Accepting the submission that generally applied rigid rules are contrary to a careful appraisal of the fact specific interests of children, Blake J said (at [117]) that given the legislative context in which they operate the rules in the instant case are not unlawful because parallel legal duties towards children could be applied in a case specific manner when the relevant facts are established: R (SM & Ors) v SSHD [2013] EWHC 1144 (Admin) considered.

Blake J noted (at [118]) that ECOs had a statutory duty to promote the interests and welfare of children in the UK when considering admitting persons whose presence or absence impacts children and his lordship reminded himself of his own decision in Izuazu that Appendix FM does not capture all the situations where children’s welfare or Article 8’s operation affect immigration decisions. Stating that it was impossible to outline when the maintenance rules would breach children’s best interests and Article 8, Blake J predicted that “if young children are forcibly separated from their principal carer or both parents or their welfare is endangered by other loss of a carer” then the Upper Tribunal’s “extensive case law” would expand further.

The Court also explained (at [119]) that MM’s argument that denying his wife admission adversely impacts AF’s best interests was challenging to substantiate and remained impossible by brining a generic challenge to the legality of the rules.

III. Whether the Interference is Justified?

Turning to the question at the heart of the matter – whether the minimum income provisions of the maintenance rules when applied to sponsors who are British citizens or refugees whose incomes and savings combined do not meet them are a disproportionate interference with the right to respect for family life? – Blake J held (at [123]) that the combination of the measures in the amendments, when applied to either recognised refugees or British citizens, was so onerous in effect as to be an unjustified and disproportionate interference with a genuine spousal relationship beyond a reasonable means of giving effect to the SSHD’s legitimate aim.

Although “sound reasons” favouring individual requirements existed, the combination of more than one of the following “five features” (see at [124]) of the rules taken together could not produce any other result:

(1)  The setting of the minimum income level to be provided by the sponsor at above the £13,400 level identified by the Migration Advisory Committee (MAC) as the lowest maintenance threshold under the benefits and net fiscal approach. Such a level would be close to the adult minimum wage for a 40-hour week. Only 301 of the 422 occupations listed in the 2011 UK Earnings Index were above the £18,600 threshold.

(2)  The requirement of £16,000 before savings can be said to contribute to rectify an income shortfall.

(3)  The use of a 30-month period for forward income projection, as opposed to a 12-month period that could be applied in a borderline case of ability to maintain.

(4)  The disregard of even credible and reliable evidence of undertakings of third party support effected by deed and supported by evidence of ability to fund.

(5)  The disregard of the spouse’s own earning capacity during the 30-month period of initial entry.

Conscious that MAC recommended the income level and that Parliament was aware of the issues at stake, Blake J nevertheless held (at [126]) that:

To set the figure significantly higher than even the £13,400 gross annual wage effectively denies young people and many thousands of low-wage earners in full time employment the ability to be joined by their non-EEA spouses from abroad unless they happen to have wealthy relatives or to have won the lottery. This frustrates the right of refugees and British citizens to live with their chosen partner and found a family unless such modest earnings could be supplemented by any reasonably substantial savings, third party support or the future earnings or the spouse seeking admission. The executive can hardly be heard to say that the minimum adult wage is a manifestly inadequate sum to provide a basic standard of living over the subsistence threshold for a household without dependent children.

The Court also made some other telling observations (at [127]) and Blake J doubted the degree of austerity – setting an income figure that deprives either spouse of the possibility of claiming housing benefit at the outset of the 5-year period – which the rules required: a sponsor and her/his spouse may have zero housing costs or costs lower than those espoused by MAC. The statistical advice imparted by MAC was embedded in “the dismal science of economics” and was incapable of sufficiently justifying “the terms in which the policy is set” (at [128]).

In contrast to primary legislation a clause wise discussion, and amendments, of immigration policy did not exist and it was possible for Parliament to “fail to achieve the right balance between the political interests of the majority and the human rights of a minority” (at [129]).

Drawing parallels with the pre-July 2012 environment, Blake J considered informing “a low earner that there is fairness and flexibility in the scheme because they can count any savings over £16,000 to add to their low earnings” to be “a rather cruel piece of mockery” (at [131]). Questioning “how is a person earning the minimum wage likely to accumulate savings of £16,000?” his lordship opined that “rather than to front load these substantial financial burdens on a self-sufficient but low-paid earner before the spouse is admitted” the right time to examine a couple’s financial circumstances was at the end of the 5-year period because the earning power of both partners can be taken into account. The Court also noted that length of the 30-month assessment period coupled with the dramatically heightened fiscal requirements was “not permissible when the potential consequences are so severe” (at [132]). Equally, given the uncertain economic climate even the best job could be lost or an unlikely applicant could find employment.

Because earlier checks facilitate the aim of long-term self-sufficiency, Blake J wholly rejected (at [133]) the dogma that expense and managerial simplicity demanded a first check after the initial probationary period of 30 months and further scrutiny after 60 months. Doubts over third party support and post-entry work by spouses were better addressed at an early stage rather than by virtue of “extravagant requirements for pre-entry income and savings over a 30-month period.” The goal posts had not shifted since the Supreme Court’s ruling in Mahad and given that applicants discharged the burden of proof unreliable cases would inevitably fail (at [134]).

Blake J moreover explained that since immigration decision making was akin to a “commercial service” which involved high fees the users’ interests enjoyed greater priority than executive officers assessing evidence (at [135]). Furthermore, given that the rules could be met by obtaining cash from a wealthy relative, his lordship made clear that practicality dictated that sponsors’ relatives should be allowed to create a standing order in their favour (at [136]). Alternative arguments were futile because the foreign spouse would ultimately add to the family budget and checks within the rules ensured that promises of maintenance would be kept.

The rules’ preclusion, for the first 30 months, of the earning power of the spouse seeking admission was “both irrational and manifestly disproportionate in its impact on the ability for the spouses to live together” because the minimum income threshold targeted a family of two people (at [137]). So it was only logical to take both partners’ economic resources to meet the requirements.

Transparency and ease of assessment do not justify imposing an exorbitant price on family re-union. Drawing analogies with the points-based system was otiose because foreign nationals do not have human or constitutional rights to work or study in the UK whereas both British citizens and refugees enjoy residence and family life rights “that the state must respect” (at [139]). Equally, transparency cannot justify a mass of aggregate measures that hinder honest Britons with modest incomes from living in their homeland with their spouses. A blanket rule that excludes sufficient and reliable data undermines transparency. A job offer proved a spouse’s earning power and delay in processing entry applications was insufficient reasoning to split families up. An unnecessarily austere exclusionary rule does not provide answers whereas discharging the burden proof does. Checks after 12 months of entry remain “proportionate and informative” (at [140]) and provided a reasonable opportunity for the spouse to secure employment through the recruitment process.

Judicial experience shows that future economic prospects are not “inherently complex or imponderable questions” (at [141]). Setting a high income threshold pinpoints what the SSHD wishes to accomplish but denying couples legitimate means to show minimum self-sufficiency requires “the means of proof to predominate over the right itself, and results in a disconnection from the legitimate aim of economic self-sufficiency and the promotion of integration.”

IV. Conclusions: Summary

Although Blake J accepted that integration, self-sufficiency and a reasonable standard of living comprise a legitimate aim, “administrative convenience cannot be an end in itself or justify the separation of spouses” (at [142]). In light of the Strasbourg jurisprudence, the synthesis of the “five features” failed to strike a fair between the rival interests at stake and therefore, save foreign sponsors (“voluntary migrants”), the executive’s discretionary judgment notwithstanding, the said features disproportionately interfere with the Article 8 rights of refugees and British citizen sponsors.

In light of domestic jurisprudence (Quila, Huang, Daly v SSHD [2001] 2 AC 532), as a lump sum the “five features” are so intrusive that they are more than is necessary to promote the legitimate aim. In fact, from the instant claimants’ perspective, the “five features” combined are “not merely disproportionate as a matter of human rights law but also an irrational and unjustified restriction on rights under the law relating to recognised refugees and the constitutional rights of British citizens” (at [143] – [144]).

Blake J identified (at [147]) less intrusive responses:

(1) Reducing the minimum income required of the sponsor alone to £13,500; or thereabouts.

(2) Permitting any savings over the £1,000 that may be spent on processing the application itself to be used to supplement the income figure.

(3) Permitting account to be taken of the earning capacity of the spouse after entry or the satisfactorily supported maintenance undertakings of third parties.

(4) Reducing to twelve months the period for which the pre estimate of financial viability is assessed.

The Court found it “neither necessary nor desirable” in setting “a proportionate financial requirement”  (at [148]). Rather, Blake J – who explained that his conclusions aimed to assist evaluating the prospects of success in entry clearance applications – left it to the SSHD to adjust her rules to meet his observations.

V. Exceptional Circumstances

His lordship remained unconvinced (at [149] – [153]) that the Entry Clearance Office’s ability to refer difficult cases to the SSHD for advice on the application of the exceptional circumstances policy is adequate to make the decision making process compatible with the ECHR and lawful.

VI. Disposal

Despite his conclusions, Blake J did not consider it appropriate to strike down the financial requirements of the rules under challenge or make a formal declaration (at [120] – [121], [154]). The Court rejected the SSHD’s invitation to dismiss the claimants’ concerns as unmeritorious. Instead, Blake J found “substantial merit” (at [155]) in the argument that interference caused by the blend of the five features in the family life of the claimants was disproportionate and unlawful.

Comment

Refugees and British citizens whose families are torn apart will no doubt welcome Blake J’s treatment of the maintenance requirements for spouses and the acclaimed Free Movement Blog rightly commented that the “judgment offers hope that they will soon be able to live with their loved ones in the United Kingdom.” Likewise the legendary Manjit Gill QC of No 5 Chambers – who represented claimant MM – characterised the judgment as “a welcome relief”.

One must, of course, agree with these weighty observations.

But it is also worth noting that the appellate system for entry clearance decisions is pitifully slow and it often takes a whole year before a hearing takes place. And even where a sponsor clearly meets the financial requirements, without a shred of evidence ECOs routinely refuse applications by saying that the marriage is not genuine and subsisting. For example, in numerous cases the sponsor’s return to the UK soon after the marriage is cited as evidence of a dodgy relationship.

With £18,600 to earn annually, how can sponsors be expected to spend more time on holiday than their employment contracts permit?

Anyway, for the British government everything is acceptable to keep foreigners out. The Home Office, which is “looking closely at the judgment”, reacted to Blake J’s decision by stating that applications which fell to be refused because of the financial requirements would be put on hold – decision making has been “paused”.

Exile for British citizens … surely history is repeating itself …

About Asad Khan

Advocate High Courts of Pakistan
This entry was posted in Appeals, Article 8, Immigration Rules, MAC, Proportionality, Spouses and tagged , , , . Bookmark the permalink.

One Response to A Rather Cruel Piece Of Mockery: Part 2

  1. mkp says:

    26 July 2013

    The Home Office today, 26 July 2013, filed its appeal against a High Court judgment on the minimum income threshold for spouses/partners and children applying in the family route.

    The judgment affects non-EEA national spouses/partners and children applying to settle in the UK with someone who is already resident here.

    The Home Office will continue to put on hold decisions in some spouse/partner and child settlement visa and leave to remain applications until the case is finally determined by the Courts.

    A Home Office spokesperson said:

    ‘Our family changes were brought in to make sure that spouses coming to live in the UK would not become reliant on the taxpayer for financial support and would be able to integrate effectively. We are pleased that the High Court judgment of 5 July supports the basis of our approach.

    ‘However, we believe matters of public policy, including the detail of how the minimum income threshold should operate, are for the Government and Parliament to determine, not the Courts. We also believe the detailed requirements of the policy are proportionate to its aims. We are therefore pursuing an appeal against the judgment.

    ‘We have asked the Court of Appeal to expedite this. In the meantime, where an applicant does not meet the minimum income threshold and there is no other reason to refuse it, the application will be put on hold.’

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