In an eagerly awaited decision regarding income requirements and sponsoring partners under the overhauled Immigration Rules, the Court of Appeal (Maurice Kay, Aikens & Treacy LJJ) has controversially allowed the government’s appeal against Blake J’s judgment, reported at  EWHC 1900: see here. The income requirements, held lawful by Aikens LJ, stipulate a minimum income of £18,600 per annum and additional requirements of £3,800 for the first child and £2,400 for each child thereafter. Moreover, specified savings of £16,000 are required to fix an income shortfall, and neither the non-European Economic Area partner’s income nor third-party support can be taken into account in calculating the UK partner’s income.
Three claimant sponsors, “respondents” in the Court of Appeal, none of whom can satisfy the new Immigration Rules of 9th July 2012, challenge the income requirements by way of judicial review. The first claimant, MM, a Lebanese national with refugee status, married a Lebanese woman by proxy. MM lives with his sister, EF, who has discretionary leave to remain resulting from the breakdown of her marriage. AF, her son, an interested party, considers his uncle MM, the first claimant as a father figure. The second claimant, AM, a British citizen of Pakistani origins, married a Pakistani woman who lives in Azad Kashmir. The third claimant, SJ, a British woman of Pakistani origins, married a Pakistani national who lives in Pakistan and works as a civil servant. None of the claimants’ partners have applied for entry clearance under the new rules, albeit AM’s wife has been refused admission as a spouse on three occasions and once as a visitor.
The Court of Appeal
Aikens LJ introduced the issues on appeal by noting the Supreme Court’s opinion in New London College  UKSC 51 (see here) that the Immigration Act 1971 had not aged well and could not cope with complex problems associated with immigration control. His Lordship explained that by making it unlawful for a public authority to act in a way which is incompatible with a Convention right, the Human Rights Act 1998 intensified the complexity of problems associated with immigration control. The Court of Appeal unanimously held that the onerous provisions of the Immigration Rules set out in Appendix FM, introducing minimum income requirements as regards persons with the right to live in the UK who sponsor the admission of their non-EEA citizen spouses to the UK, are not a disproportionate interference with the right to respect for family life under article 8 ECHR. Minister for Security and Immigration, James Brokenshire, was “delighted that the Court of Appeal has comprehensively upheld the lawfulness of this important policy.”
However, counsel involved in the case have expressed their disagreement with the ruling by complaining that:
Whereas Mr Justice Blake’s decision had properly considered the detailed evidence provided by the claimants’ lawyers, the Court of Appeal barely considered it.
The court identified the issues for determination as: whether Blake J had correctly characterised the requirements’ nature and aims; the legal principles by which the court should consider the requirements’ compatibility with UK partners’ article 8 rights; the correctness of Blake J’s conclusion that the requirements were in principle incapable of compatibility with UK partners’ article 8 rights; whether the preclusion of reliance on third party funding was irrational at common law; whether Blake J had been correct to find that indirect discrimination within article 14 ECHR caused by the requirements was justified; whether there was a separate ground of objection to the requirements, based on section 55 of the Borders, Citizenship and Immigration Act 2009 and; the relevance of the “exceptional circumstances” provisions in the draft Guidance and the Immigration Directorate Instructions.
Aikens LJ held at paragraphs 91 and 92 that Blake J had correctly characterised the nature of the requirements and he was right to conclude that the requirements had as their legitimate aim the reduction of expenses on the public purse and a better opportunity for greater integration of non-EEA spouses with British society.
Aikens LJ said at paragraph 132 that the Home Secretary was under a common law duty not to promulgate an immigration rule that was discriminatory, unjust, made in bad faith, or involved gratuitous interference with the rights of those subject to it. Moreover, if she chose to promulgate a rule fitting this description, it could be struck down or the offending part of it severed. Furthermore, applying the decisions in Huang  UKHL 11, Baiai  UKHL 53 and Bibi  EWCA Civ 322, the Home Secretary was obliged to formulate an immigration rule in a way that meant that even if it interfered with a Convention right, it could not do so in a manner which was inherently disproportionate or unfair.
Following the Supreme Court’s decision in Quila and the instant court’s decision in Bibi, his Lordship also explained that if a rule was challenged as contrary to Convention rights, the Huang tests had to be applied. In circumstances where a rule was being challenged in principle, rather than an individual article 8 decision, the test was whether, assuming the rule constituted an interference with a Convention right, the rule and its application to particular cases would be inherently disproportionate or unfair. (Aiken’s LJ put the test in other words – whether the rule is incapable of being proportionate and so is inherently unjustified?) On the other hand, in light of Mahad  EWCA Civ 1082, Pankina  EWCA Civ 719 and Nagre  EWHC 720, a particular rule did not, in each case, have to result in a person’s Convention rights being guaranteed: however, if the rule under consideration was incapable of being applied proportionately or justifiably, it would be unlawful.
Aikens LJ held at paragraph 134 that in circumstances where the relevant group of immigration rules, upon their proper construction, provided a “complete code” for dealing with a person’s Convention rights in the context of a particular immigration rule or statutory provision, such as in the case of “foreign criminals”, then the balancing exercise and the way the various factors were to be taken into account in an individual case had to be done in accordance with that code, although references to “exceptional circumstances” in the code would none the less entail a proportionality exercise. However, in situations where the relevant group of immigration rules were not such a “complete code” then the proportionality test would be more at large, albeit guided by the Huang tests and domestic and international case law.
The court held at paragraph 152 that Blake J’s analysis and conclusion that the requirements were, in principle, incapable of being compatible with the article 8 rights of the UK partners (and others) was not correct. Rejecting Blake J’s approach, Aikens LJ held at paragraph 137 that the UK partner’s unhindered right to reside in the UK was a “personal right” and he therefore let it be known that:
There is nothing in the 1971 Act or the common law that grants a “constitutional right” of British citizens to live in the UK with non-EEA partners who do not have the right of abode in the UK and who are currently living outside the UK.
Aikens LJ said at paragraph 138 that the requirements constituted a very significant interference with the article 8 rights of UK partners who could not meet them. But the court nevertheless held that the aims of the policy were sufficiently important to justify limiting article 8 rights. His Lordship explained:
141. … The Secretary of State does not have to have “irrefutable empirical evidence” that the individual features of the policy proposed will achieve the social aim intended. It is enough that she should have a rational belief that the policy will, overall, achieve the identified aim.The requirements were the result of a great deal of work to identify (a) the long-term requirements of some immigrants on the welfare system and (b) what income was needed to lessen or avoid that dependence and how that income could be calculated. The conclusion that a family with more income would be more likely to be capable of integrating is not susceptible of empirical proof, but a belief in the link between higher income and the likelihood of better integration is rational.
So the court elaborated at paragraph 142 that there is a rational connection between the figures required and the policy aim – Aikens LJ held that:
147. Essentially the debate is about figures and what should be the minimum necessary income figure and what other possible sources of income should or should not be taken into account to see if that minimum can be reached. This case is not the same as Quila, where the policy imposed a total ban on entry of persons between 18 and 21 who wished to be married to UK citizens; or Baiaiwhere the policy (subject to a discretionary compassionate exception) imposed a “blanket prohibition on the right to marry at all in the specified categories”. Here, the non-EEA partner can enter the UK, provided the UK partner’s level of income, judged by the policy of the requirements to be appropriate, is reached. Admittedly there is a total ban on the entry of non-EEA partners where the UK partner cannot reach the required minimum and I appreciate that this ban could be life-long. But there has always been a maintenance requirement at a certain level and if that level was not reached by the UK partner, then there was a total ban on the entry of the non-EEA partner unless, in an individual case, it would be disproportionate under Article 8(2)to refuse entry in that instance. Moreover, maintenance requirements are not unique to the UK and it does not set the highest minimum annual income; Norway does.
Noting at paragraph 148 that the extent to which the court should substitute its own view as to the appropriate income level for that chosen by the executive remained the key question, the court held at paragraph 150 that the Home Secretary’s position could not be impugned because she had labouriously analysed the effect of immigration of non-EEA partners on the benefits system, the level of income needed to minimise dependence on the state, and reached a rational conclusion on the link between income and integration. It was also his Lordship’s view that the Home Secretary had demonstrated that the interference was the minimum necessary and struck a fair balance between the interests of the groups concerned and the community in general. Aikens LJ therefore held that the court should not impose its own view unless the levels chosen were irrational, inherently unjust or inherently unfair (which indeed they more than arguably are).
In light of the above, the court also explained at paragraph 153 that the third party funding requirement was not irrational. It had not been imposed on a whim.
The court reminded itself of the Bibi court’s analysis that all immigration law is inherently discriminatory. Aikens LJ rejected the notion that the executive had overstepped the mark and exceeded her margin of discretion in adopting economic and social strategy measures which impeded the lives of married couples to live together and instead his Lordship held at paragraph 156 that if some form of income requirement was to be imposed, the executive had to draw a line somewhere. His Lordship observed that unless it was wholly unreasonable, the court should not interfere with the executive’s judgment. The Home Secretary had been aware of the indirect discriminatory impact produced as a result of the requirements and, at paragraph 157, Aikens LJ concurred with Blake J’s analysis that it was both impractical and inappropriate to attempt to make provision in the Immigration Rules for possible impact on different groups because “[v]irtually all attempts at creating sub-rules, divisions, or exceptions are bound to create more, rather than less discrimination.”
The court said that duty imposed by section 55 arises when (i) new rules are being formulated, i.e. the context in which the present cases arose and (ii) individual decisions are being made. Aiken’s LJ rejected the view that the Home Secretary had not fulfilled her duty and explained at paragraph 162 that it was not a legal requirement for the Immigration Rules that the child’s best interests should be determinative – section 55, or so his Lordship held, is not a “trump card” to be played whenever the interests of a child arise.
Equally, as observed by Blake J, alternative provisions exist in the rules disclose a policy that the requirements are inappropriate when it is in the best interests of a child that a parent or carer should be admitted to look after a child in the UK and there are adequate funds and accommodation for that purpose (and any dependants joining the carer).
Aikens LJ held at paragraph 163 that these appeals are not dealing with individual cases where the requirements might produce a harsh result in relation to a child in the UK. Therefore, the way that the “exceptional circumstances” provision and article 8 will work in those individual cases was not for the court to decide in the present proceedings.
Appeal to Supreme Court
Not exactly impressed with the Court of Appeal for taking four months in handing down this judgment, counsel in the case posted that:
The test adopted by the court is the same as that which it adopted in Bibi (the case concerning the English language requirement), namely that it is enough that the Secretary of State should have a ‘rational belief’ that the policy embodied in the requirements will achieve the identified aim. This is an extremely restrained form of judicial review and suggests a lack of willingness to interfere with governmental decisions. This test seems to conflict with the approach adopted by the Supreme Court in cases such as Baiai and Quila where the court adopted a rigorous analysis in assessing the evidence and used a test requiring the Secretary of State to show an objective justification. The Supreme Court has already granted permission to appeal in Bibi on arguments which include the argument that the test of a mere rational belief is wrong. It is likely that the present case will also proceed to the Supreme Court on an expedited basis.
All this is extremely interesting. However, it is all the more interesting to come across cases where British citizen or settled migrant sponsors fulfil the rules for admission of their non-EEA partners to the letter but still get refused because the Entry Clearance Officer chose to develop some other problem with the applicant: for example, not remembering the “exact” day/date the applicant met their partner – or something totally creepy along those lines.