A Rather Cruel Piece Of Mockery: Part 1

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

Much has been said about the controversial mandatory financial requirements – which almost half of the UK’s working population cannot meet – for sponsoring non-EEA spouses. The requirements were the linchpin of the June 2012 Statement of Changes in the Immigration Rules HC 194 which entered into force on 9th July 2012. A year later, in a masterly judgment Mr Justice Blake held that the interference caused by the financial requirements amounted to a disproportionate and unlawful interference with the rights of refugees and British citizen sponsors to enjoy respect for family life. The milestone ruling contains a bonanza of international and domestic jurisprudence.

Despite the setback to the Home Office, Blake J’s judgment contains some emollient bits for the government because he also ruled that the amendments to the Immigration Rules (the rules) concerning the maintenance requirements for admitting spouses, including raising the minimum income level to be provided by a UK sponsor to £18,600 (without children), had a legitimate aim in promoting measures that required spouses to be maintained at a somewhat higher level than the bare subsistence level set under previous interpretations of the rules. Conversely, the measures are so onerous in effect as to produce an unjustified and disproportionate interference with the ability of spouses to live together contrary to their rights under Article 8 of the European Convention on Human Rights (ECHR).

The Claimants

The judicial review challenge concerned three claimants. The claimants’ circumstances are extremely telling about the overall dilemma and it rewards our analysis to outline the facts. The litigation involved a high level of abstraction because the facts asserted by the claimants were not evaluated in an application or appeal.

MM, from Lebanon, who is studying for a doctorate, had leave to remain as a refugee. His gross annual income amounted to £15,600 and he could accommodate his wife in the housing he occupied with his sister. His Lebanese wife, with bright prospects of getting skilled work in the UK, is educated to degree level, speaks fluent English and works in the Lebanon as a pharmacist. The trouble was that MM was unable to meet the £18,600 requirement in Appendix FM of the rules. He complained that Appendix FM-SE precluded him and his wife from relying on her earning power in the UK during the probationary period of her spousal visa. Prior to HC 194, or the new rules, MM’s wife would have qualified for entry clearance because her admission would not lead to additional recourse to public funds and that the couple would be adequately accommodated. The rules preclude MM’s brother and father from pledging £80 per week to him as support. MM claimed that these constraints unjustifiably interfered with his right to respect for a private and family life: the couple could not live together elsewhere and making the application for entry clearance would just mean losing £826. MM also claimed that the requirements also undermined the SSHD’s duty to safeguard the welfare of children because the separation of his family adversely affected his nephew AF to whom MM provided care.

Abdul Majid (AM), a British Pakistani, resided in the UK for over 4 decades. He has 5 children with his Kashmiri/Pakistani wife and all but one of them live in the UK. Between 2002 and 2010, AM’s wife was refused spousal entry clearance three times and was subsequently refused a visit visa. AM, whose relatives were willing to support him financially, has not worked since 2006 and received £17,361 per annum in benefits. AM’s prospects of employment would be bolstered if his wife were in the UK to care for the children. AM complained that the rules in relation to admission of parents of children settled in the UK for 7 years exclude parents who can enter as spouses.

Shabana Javed (SJ), a British citizen of Pakistani origin, resided in the UK for 3 decades in economically and socially deprived conditions. Without qualifications and unemployed, SJ complained that none of her female peers earned more than £18,000 and that the job centre only offered jobs below this salary. In 2012, SJ married a Pakistani who is unable to come to the UK because of her lack of earnings. In addition to the complaints made by MM, SJ complained that the specified evidence in respect of continuous pay slips (for 6 months or more) is too strict. SJ also claimed that the financial requirements discriminated against women – especially of British Asian extraction – as they are paid less than men. Moreover, SJ found the exclusion of her husband’s potential income from the equation as discriminatory because male migrants are easily able to find work and support their families.

Legislation

The Immigration Act 1971 remained Blake J’s point of departure: section 1 allows British citizens such as AM and SJ the freedom to live in, and to come and go into and from, the UK without let or hindrance; section 1 also allows the rules of immigration practice to include provisions for admitting dependants of persons lawfully in the UK. However, the lawfulness of the rules turns on whether they are compatible with the sponsors’ ECHR rights: section 6 (Acts of public authorities) of the Human Rights Act 1998 (HRA) read with Article 8 (Right to respect for private and family life) and Article 14 (Prohibition on discrimination) of the ECHR. Equally, in discharging immigration functions, section 55 (Duty regarding the welfare of children) of the Borders Citizenship and Immigration Act 2009 (BCIA) requires the SSHD to safeguard and promote the welfare of children who are in the UK.

Case Law

As one would imagine, in making his decision Blake J had to deconstruct the decided cases: unsurprisingly, the first case his lordship mentioned was the lamentable decision of the Strasbourg Court in Abdulaziz v UK [1985] ECHR 7 where it held that there was no lack of respect for family life in rules that did not permit females to sponsor their husbands for admission. But since Abdulaziz, Strasbourg has reconsidered the distinction between the positive obligation to respect family life found in Article 8(1) and the negative obligation to refrain from unjustified interferences with it under Article 8(2). Notably, the evolving case law – “replete with references to the importance of the interests of children” (Blake J at [29]) – focuses on admission to Contracting States’ territory (Sen v Netherlands [2001] ECHR 888; Tuquabo-Tekle v Netherlands [2005] ECHR 803) and constraints on expelling individuals admitted as children.  In respect of the latter, Maslov v Austria [2008] ECHR 546) and domestically ZH (Tanzania) [2011] UKSC 4 put children’s welfare at the heart of any administrative decision making that affects their well-being. Children aside, in Boultif v Switzerland [2001] ECHR 497 (at [40]) Strasbourg stressed the importance of the nationality of the parties in Article 8 decision making but MM, AM and SJ did not claim that the case law rendered the maintenance requirements disproportionate.

In Chakroun v Minister van Buitenlandse Zaken [2010] 3 CMLR 5, [2010] EUECJ C-578/08, the Court of Justice of the European Union (CJEU) held that the requirement for a lawfully resident Moroccan national to have resources equivalent to 120% of the minimum income laid down in Dutch law to be able to sponsor the admission of her Moroccan husband had to be strictly construed as derogating from a right to family re-union under Directive 2003/86/EC (in which the UK does not participate) on the right to family reunification: thus, a minimum income requirement imposed without regard to the particular circumstances of the family was not lawful. But since MM, AM and SJ’s applications did not involve the application of European Union (EU) law to engage the provisions of the Charter of Fundamental Rights (CFR), as explained in Kreshnik Ymeraga, v Ministre du Travail, de l’Emploi et de l’Immigration [2013] EUECJ C-87/12 the national court could neither apply EU law nor the CFR. Similarly, AM and SJ (British/EU citizens) could not rely on Carpenter v SSHD [2002] EUECJ C-60/00, [2002] ECR I-6279 where the CJEU explained that a Member State may invoke reasons of public interest to justify a national measure which is likely to obstruct the exercise of a fundamental freedom only if that measure is compatible with the fundamental rights whose observance the Court ensures.

Referring to his own decision in Izuazu (Article 8 – new rules) [2013] UKUT IAC 45, Blake J explained (at [39] – [42]) that the rules are a statement of the SSHD’s policy; the SSHD was unable to truncate ECHR rights by arguing that primary legislation required her to do so; the Administrative Court could strike the rules down as irrational or otherwise unlawful; that the rules should be interpreted sensibly and flexibly in accordance with their plain words and context; and that where their application breaches human rights, statute provides a right of appeal that refusing admission (entry clearance) is not in accordance with the law and breaches an applicant’s human rights. Long before the HRA and BCIA, Parliamentary approval notwithstanding, in R v IAT ex p Manshoora Begum [1986] Imm AR 385 Simon Brown J (as he then was) held an immigration rule to be so unreasonable as to be ultra vires the SSHD’s powers.

Since the Immigration Act 1971’s entry into force (1973), admission of spouses outside of EU law required that the sponsor is able to maintain the spouse without recourse to public funds. Although persons seeking admission as spouses are precluded from recourse to income support or other forms of non-contributory social assistance, persons either settled or with a right of abode in the UK were able to claim social security entitlements and spend such benefits as they wished. Hence, the pre-July 2012 question concentrated on whether admitting a spouse would enhance the sponsor’s entitlement “by reference to the presence of an additional person from abroad” (Blake J at [44]). Each case turned on its own facts and in KA and Ors (Adequacy of maintenance) (Pakistan) [2006] UKAIT 65 it was decided (at [8]) that the purpose of the requirement of adequacy under the rules ensured “that a proper standard, appropriate to a family living in a not inexpensive western society, is available to those who seek to live here.” So the belief that “the rules do not prescribe a minimum” was wrong because “[t]hey do: they require adequacy” (at [9]).  Blake J explained (at [50]) that in KA the AIT concluded that irrespective of the projected outgoings of the family, as a minimum, a sponsor would need to demonstrate that resources equivalent to the income support level of a single couple of £5,500 needed to be shown, net of housing costs and any tax liabilities.

Blake J’s judgment analyses (at [51] – [64]) recent cases which considered whether regard could be had to third party financial support and whether additional recourse was being sought by the family. Although in MK (Somalia) v ECO Addis Abbaba [2007] EWCA Civ 1521 the Court of Appeal held that a disabled sponsor could use her disability living allowance to support her husband, in MW (Liberia) v SSHD [2007] EWCA Civ 1376 the Court held that owing to difficulties connected to verification the rules precluded recourse to third party funding for children. Subsequently, in AM (Ethiopia) v ECO [2008] EWCA Civ 1082 the Court found itself bound by MW (Liberia). Ultimately AM (Ethiopia) and AM (Somalia) v ECO Addis Abbaba [2009] EWCA Civ 634 reached the UK’s court of final recourse as Mahad and Ors v ECO [2009] UKSC 16 and the Supreme Court unanimously held that upon a proper construction rules did not prohibit recourse to third party support at all. Lord Brown, as he then was, held that the MW (Liberia) decision was wrong and that Laws LJ’s judgment in AM (Ethiopia) needed revisiting only if the rules were amended to exclude third party support which is what the SSHD did in July 2012.

In R (Baiai) v SSHD [2008] UKHL 53 their Lordships’ House held that requiring a person who was subject to immigration control to obtain a prior certificate of approval (COA) to enter a marriage otherwise than in accordance with the rites of the Church of England was both discriminatory on the grounds of religion and an unjustified and disproportionate interference with the right to marry recognised by the ECHR. Although promoting the COA scheme was in the pursuit of the legitimate aim of deterring and preventing marriages of convenience entered into for immigration purposes, Lord Bingham (at [30]) let it be known that “a fee fixed at a level which a needy applicant cannot afford may impair the essence of the right to marry which is in issue. A fee of £295 (£590 for a couple both subject to immigration control) could be expected to have that effect.”

In O’ Donoghue v UK [2010] ECHR 2022, rejecting the UK’s argument that the existence of a discretion to avoid the requirement where compassionate circumstances were evidenced could save the COA scheme, the Strasbourg Court concurred with Lord Bingham and found the blanket nature of the requirement objectionable.

But it is well known that losing cases does not inhibit the SSHD from experimenting with seeking out evil. In a bid to protect women against forced marriage the age to sponsor spouses’ entry clearance was raised from 18 to 21. In R (Quila) v SSHD [2010] EWCA Civ 1482 the Court of Appeal famously found (at [48]) rule 277 to be “[a] direct interference with what the common law and European Convention both value as a fundamental right.” In answering “the critical question … why the protection of the vulnerable justified a blanket rule which invaded the fundamental rights of a far greater number of innocent people”, at [62] Sedley LJ (as he then was) held that “proportionality is not gauged by headcount”. The SSHD appealed but the UK Supreme Court (Lord Brown dissenting) would have none of it. In the instant case, Blake J (at [74]) characterised R (Quila) v SSHD [2011] UKSC 45 as having “profound importance for the present challenges.” Ending decades of frustration for claimants who sought to found a right of admission of a spouse under Article 8, Lord Wilson (at [43]) declined to follow Abdulaziz (“an old decision”) and rejected the government’s stance.

The legitimate aim behind increasing the age limit to sponsor spouses from 18 to 21 was for the protection of the rights and freedoms of those who might otherwise be forced into marriage and it was in accordance with the law. But in assessing proportionality the key question was whether the change was “necessary in a democratic society”? Mindful of approach of their Lordships’ House to ascertaining proportionality in Huang v SSHD [2007] 2 AC 167 and R (SB) v Governors of Denbigh High School [2007] 1 AC 100 and drawing from Lord Bingham and Lady Hale’s speeches in Baiai, Lord Wilson viewed the operation of rule 277 to deter forced marriages with extreme suspicion. Lord Wilson held (at [58]) that the interference with Article 8 was disproportionate because “[o]n any view it is a sledge-hammer but” the SSHD “has not attempted to identify the size of the nut.” Lady Hale added (at [80]) that she found it “difficult to see how” the SSHD “could avoid infringing Article 8 whenever she applied the rule to an unforced marriage.” The age limit was revised to 18.

In R (Chapti) v SSHD [2011] EWHC 3370 (Admin), the claimants’ challenge to rules introduced in November 2010 requiring most foreign spouses to produce a pre-entry test certificate of basic knowledge of the English language was dismissed. The Court of Appeal [2013] EWCA Civ 322, aka Bibi, (Maurice Kay and Toulson LJJ by majority, Sir David Keene dissenting) upheld the Administrative Court’s decision and considered the pre-entry tests as “a benign measure of social policy with the purpose of facilitating the integration of non-English-speaking spouses” (at [30]). In light of Stec v UK [2006] ECHR 1162, Contracting States are allowed a wide margin of appreciation under the ECHR when it comes to general measures of economic or social strategy. Unless “manifestly without reasonable foundation”, Strasbourg generally respects the national legislature’s policy choice. Noting that this test informed the recent decision of the Supreme Court in Humphreys v Revenue and Customs Commissioners [2012] 1 WLR 1545, [2012] UKSC 18, Maurice Kay LJ (at [30], with whom Toulson LJ concurred) commented that “[w]ithout it, it might become impossible for a government to govern without waiting for judges to judge.”

Blake J also observed that in R (Nagre) v SSHD [2013] EWHC 720 (Admin) a challenge to the deportation and removal provision of the new rules was rejected: upholding Izuazu Sales J noted the Tribunal’s ability to make an independent evaluation of Article 8 claims on appeal in the event that the rules did not reflect existing case law.

In R (Zhang) v SSHD [2013] EWHC 891 (Admin) Turner J remained unconvinced – “I find these arguments to be unappealing” (at [43]) and “[i]t must follow from this that the application of the blanket requirement to leave the country imposed by paragraph 319C(h)(i) of the immigration rules is unsustainable” (at [78]) –  that any defect in rule 319C could be cured by inviting an applicant to ask the SSHD to exercise discretion outside the rules: see Sarah Pinder’s brilliant analysis. The Court concluded that in most cases the requirements under rule 319C for a person with limited leave to remain to depart the UK and apply for entry clearance as a partner of a points-based system migrant were likely to be disproportionate interference with Article 8 rights.

Please see part 2 for more.

About mkp

Advocate High Courts of Pakistan
This entry was posted in Article 8, Asylum, COA, Forced marriage, Judicial Review, Spouses and tagged , , , , . Bookmark the permalink.

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