Article 8 and MIR: Appendix FM in Supreme Court

steve2Despite stiff competition from other cases, these appeals have got to be the showdown of the year. Tearing through the UK’s social fabric the country’s immigration rules are a minefield and have been producing more than their fair share of contentious and protracted litigation copious amounts of which keeps piling up on the Supreme Court’s doorstep. Legal limbo is a frequent visitor for the court’s justices and the well-known appeals of MM (Lebanon), AM (Pakistan), Master AF, SJ (Pakistan) and SS (Congo) were finally heard for three days (22-24 Feb 2016) by Lady Hale (Deputy President), Lord Kerr, Lord Wilson, Lord Reed, Lord Carnwath, Lord Hughes and Lord Hodge. The infamous question for the Supreme Court is whether the Minimum Income Requirement (MIR) for a UK citizen or resident wishing to bring a non-EEA spouse or partner into the UK is in breach of article 8 ECHR, unlawfully discriminatory and/or irrational? Devastation caused by the rules sets new standards in brutality because they are forcing British citizens into exile. The requirements were made part of the rules on 9 July 2012 through statement of changes HC194 and the savage consequences of the muscular rules laid down in Appendix FM are at the heart of these appeals.

In addition to extortionist fees for applications which dissuade many from applying in the first place, the complexities of the rules mean that there is a high certainty that an extremely large number of applications will inevitably be refused. As reported, estimates suggest that 43 per cent of the UK’s population fails the MIR and the appellants argue that the rules are absurd. The case is equally remarkable because it is the British government’s express position that “more affluent people integrate better”. However, the appellants submit that less affluent people have a greater incentive to integrate by doing everyday things such as speaking to their neighbours etc. Of course, in gruelling economic conditions, anyone can lose their job and the antecedent MIR of £18,600 is a poor way to evaluate a family’s future circumstances. Equally, the multiplicity of guidances makes it impossible for a layperson to succeed in making an application on their own. The existing situation is such that most entry clearance staff/caseworkers – and perhaps even the tribunals and courts – are struggling to write coherent decisions on the family rules.

Background

The Supreme Court will also be considering other issues such as (a) the extent to which the entry clearance criteria in the immigration rules for a non-EEA national spouse/partner and dependent children reflect the requirements of article 8 in individual cases, including those involving sponsors who are British citizens or refugees located in the UK and (b) whether applicants for such entry clearance who do not satisfy the rules are required to establish “exceptional circumstances” or “compelling circumstances” in order to obtain entry clearance under article 8. The Children’s Commissioner and the Joint Council for the Welfare of Immigrants are intervening in these proceedings. One of the problems created by this genre of punishing immigration rules is that at least 15,000 British children are growing up as Skype kids because the MIR threshold precludes both of parents of such children to live together in the UK. Consequently, children are either separated from one parent or forced to grow up outside the UK because of the rules. Yet families divided by the rules are nevertheless united by love.

Overall, the court’s proceedings in this and other immigration cases clearly demonstrate the clear passion driving the appellants’ advocates who have been urging the courts to adopt an open textured approach to the highly complex issues surrounding article 8 decision-making. In comparison, the home office’s flimsy and at times almost apologetic counter-arguments totally lack ministers’ initial conviction that Appendix FM and Appendix FM-SE provide some sort of cure all to the evils of family migration. The changes represent a “policy choice” for the government but they are accompanied by heavy administrative costs and less predictability in the visa system.

Clearly, the changes are also a part of the UK’s drift towards illiberalism which is driven by constant demands to “scrap” the Human Rights Act 1998. To those who understand it, the 1998 Act represent a “very fine legal instrument”. However, it was the British government’s position in court that in life “nothing is certain except death and taxes” and therefore binning article 8 and human rights altogether represent part of a larger desirable and acceptable socioeconomic agenda. For example, in distinction to the past, these days even the attorney general says that the 1998 Act is not the same thing as human rights themselves.

The MIR was held to be lawful by the Court of Appeal: [2014] EWCA Civ 985 (11 July 2014), Maurice Kay, Aikens and Treacy LJJ. Apart from stipulating a minimum income of £18,600 per annum, the MIR imposes 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-EEA partner’s income nor third-party support can be taken into account in calculating the UK partner’s income.

In proceedings reported as [2013] EWHC 1900 (Admin), three claimant sponsors (MM, AM and SJ, now appellants) challenged the MIR by way of judicial review. MM, a Lebanese national with refugee status, is 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. AM (or Abdul Majid), a British citizen of Pakistani origins, married a Pakistani woman who lives in Azad Kashmir. SJ (or Shabana Jawed), 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.

In the case of SS (Congo), see [2015] EWCA Civ 387 and here, because of the MIR the appellant was refused entry clearance as the spouse of a naturalised British citizen who had previously been recognised as a refugee. The tribunals allowed SS’s appeal under article 8 but it was overturned by the Court of Appeal because she had not demonstrated “compelling circumstances” to warrant a grant of entry clearance pursuant to article 8.

First Instance: MM (Lebanon) & Ors

Blake J, who in an earlier life represented Surrinder Singh (C-370/90), held more than two-and-a-half years ago at [2013] EWHC 1900 (Admin) that the MIR constituted an unjustified interference with affected couples’ article 8 rights. In a robust judgment he said that setting 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. Blake J’s judgment held that taken together the effects of the MIR amount to a disproportionate interference with the rights of British citizen sponsors and refugees to enjoy respect for family life. However, he did not completely object to operating a MIR, which on his analysis had a legitimate aim, and at para 147 he suggested less intrusive measures such as reducing the minimum required income of the sponsor alone to £13,500 or thereabouts.

To Blake J’s mind, five things in relation to the MIR were particularly sinister. First, setting £18,600 as 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. The latter level would be close to the adult minimum wage for a 40-hour week which was desirable because only 301 of the 422 occupations listed in the 2011 UK Earnings Index were above the £18,600 threshold. Second, the requirement of £16,000 before savings can be used to contribute to rectify an income shortfall. Third, 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. Fourth, 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. The final point made by the court was that the MIR disregards the foreign partner’s own earning capacity during the 30-month period of initial entry.

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”. 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. The net effect of the rule was too severe to be seen as paying sufficient respect to the right to a family life.

In light of domestic jurisprudence (Quila [2011] UKSC 45, Huang [2007] UKHL 11 and Daly [2001] UKHL 26), his Lordship said as a whole the “five features” are so intrusive that they are more than is necessary to promote the legitimate aim. In fact, in the present context, 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”. The court was satisfied that taken together:

108. … the measures 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.

The Court of Appeal: MM (Lebanon) & Ors

On appeal everything was different. Things took a bad turn in July 2014 when Maurice Kay, Aikens and Treacy LJJ overturned Blake J’s judgment and found in favour of the home office by unanimously holding that the MIR is not a disproportionate interference with the right to respect for family life. Minister for Security and Immigration, James Brokenshire, was “delighted that the Court of Appeal has comprehensively upheld the lawfulness of this important policy.” Aikens LJ held at paras 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.

The court said at para 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 [2007] UKHL 11, Baiai [2008] UKHL 53 and Bibi [2013] EWCA Civ 322, the executive 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.

The court 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 [2008] EWCA Civ 1082, Pankina [2010] EWCA Civ 719 and Nagre [2013] 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.

It was held at para 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 para 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 in his view:

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.

It was held 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 found that the aims of the policy were sufficiently important to justify limiting article 8 rights. Aikens LJ explained that the executive “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 finer points of the consequences of the MIR had been examined in detail by the executive and her “belief in the link between higher income and the likelihood of better integration is rational.”

Admittedly, unless article 8 saved the day, a total ban on the entry of non-EEA partners exists where the UK partner cannot reach the required minimum. Even though Aikens LJ appreciated that the blanket ban could be life-long, he reasoned that albeit at a much lower threshold a limit had always existed but for him the home secretary had to draw a line somewhere. For Aikens LJ, the executive 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. His Lordship therefore held that the court should not impose its own view unless the levels chosen were irrational, inherently unjust or inherently unfair. In light of the above, the court also said that the third party funding requirement was not irrational. It had not been imposed on a whim.

The court said that duty imposed by section 55 of the Borders, Citizenship and Immigration Act 2009 arises when (a) new rules are being formulated, i.e. the context in which the present cases arose and (b) individual decisions are being made. Aiken’s LJ rejected the view that the home secretary had not fulfilled her duty and explained that it was not a legal requirement for the 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.

The Court of Appeal: SS (Congo) and ‘Exceptionality’

According to Richards, Underhill and Sales LJJ, [2015] EWCA Civ 387, see here, the tribunals had been wrong to rely on the first instance decision in MM (Lebanon) and their erroneous treatment suffered from a failure to ascribe proper weight to the minimum income requirements in the rules and also failed to properly identify compelling circumstances that required leave to enter outside the rules to be granted. Similarly, post-decision evidence had been entertained and excessive weight was ascribed to near misses.

Whilst a refugee who could not be expected to return to his country of origin to resume family life with his applicant spouse, SSs argument based on that ground was rejected by the court at para 67. In light of the differences in the article 8 analysis between the (juxtaposed) leave to remain and leave to enter cases, Richards LJ had no problem holding that section EX.1 in Appendix FM (i.e. insurmountable obstacles to carrying on family life outside the UK) had no value in entry clearance matters. The court therefore reasoned that the mere fact that the existence of an insurmountable obstacle to pursuing family life outside the UK provided grounds for leave to remain to be granted did not mean that an insurmountable obstacle was also a reason for leave to enter to be granted.

Richards LJ held that in the absence of compelling circumstances, where the rules are not met refusal of admission might be fair and proportionate because the state is entitled to give regard to factors such as public resources and the desirability of promoting social integration. Referring to Singh [2015] EWCA Civ 74 (see here), the court yet again endorsed the unappealed case of Nagre [2013] EWHC 720 (Admin) as containing “an accurate statement of the law” but it was said that the concept of a “complete code” should not be given undue weight by the courts.

The court explained that the instructions on claims outside the rules needed to be read dynamically. Accordingly, the phrase “exceptional circumstances” covered any article 8 case in which on proper analysis under article 8 at the second stage it would be disproportionate to refuse leave. It was said that there could be no general proposition that leave to remain or leave to enter outside the rules should only be granted in exceptional cases. Yet, speaking specifically, it was equally obvious in light of the Strasbourg jurisprudence that in the absence of children a proper application of article 8 might itself make it clear that the legal test for grant of leave to remain or leave to enter outside the rules “should indeed be a test of exceptionality.” As observed by the Supreme Court in Munir [2012] UKSC 32 (see here), the scheme of the Immigration Act 1971 allows wide discretion for leave to enter or remain to be granted where an applicant cannot show that they satisfy the conditions prescribed by the rules.

Notably, as held in Huang [2007] UKHL 11, rules formulated in a completely irrational way are challengeable on ordinary domestic public law grounds as regards their lawfulness. However, as demonstrated in MM (Lebanon) a challenge of this nature is an arduous task in terms of sustainability. The court held that the decision-maker did not have to take into consideration any reasonable prospect of future improvement in the sponsor’s finances. Richards LJ, moreover, held that marginally missing the minimum requirement does not suffice as compelling circumstances warranting the grant of leave to enter. Gül v Switzerland (1996) 22 EHRR 93 and Sen v Netherlands (2001) 36 EHRR 7 both supported the proposition that a person outside the UK might have a good claim under article 8 to be admitted to the UK to join family members and continue an existing family life. But no automatic right of entry is conferred by article 8 and – as shown by Quila [2011] UKSC 45, Abdulaziz v UK (1985) 7 EHRR 471 and Gül – it does not generally oblige a state to facilitate the choice made by a married couple to reside in it. Equally, Huang [2007] UKHL 11 was clear about the state’s entitlement to control immigration.

Mentioning key authorities such as E (Children) (Abduction: Custody Appeal) [2011] UKSC 27 and ZH (Tanzania) [2011] UKSC 4, Richards LJ held at para 39 that the mere fact that “the interests of a child are in issue does not simply provide a trump card so that a child applicant for positive action to be taken by the state in the field of article 8(1) must always have their application acceded to.” The court interpreted the authorities to mean that the state had a wider margin of appreciation in relation to leave to enter than it did in relation to leave to remain. Richards LJ added that this analysis is already reflected in the exclusion of section EX.1 from entry clearance as opposed to leave to remain matters and the entry rules “therefore maintain, in general terms, a reasonable relationship with the requirements of article 8 in the ordinary run of cases.”

The court placed emphasis on the point that the use of the phrase “exceptional circumstances” in the guidance does not render the leave to remain and enter provisions of the rules into a complete code, as contemplated by Lord Dyson in MF (Nigeria) [2013] EWCA Civ 1192, but nothing turned on the distinction. Equally, the phrase “exceptional circumstances” needs to be construed in a generous fashion and it provides coverage to “any case in which on proper analysis under article 8 at the second stage it would be disproportionate to refuse leave” (original emphasis). The court used the opportunity to spell out the position delineated in paras 13, 14 and 49 of Nagre and Richards LJ simply said this to dispel future ambiguity:

49. … Thus, the cases covered by the “exceptional circumstances” guidance in the instructions to officials will fall within a wider or a narrower area in line with the changing requirements of article 8 across the gamut of cases it covers, depending on the context in which the cases arise and their particular facts. As we have sought to explain above, the “exceptional circumstances” contemplated by the instructions are not always as narrowly confined as in the foreign criminal context discussed in MF (Nigeria) and the precarious relationship context discussed in Nagre.

His Lordship also updated the law on the “near miss” principle. The government argued that “a miss is as good as a mile” and that a near miss should be irrelevant to the article 8 balancing exercise. However, the argument was dismissed and the court explained that it cannot be said that the fact that a case involves a “near miss” in relation to the requirements set out in the rules is wholly irrelevant to the balancing exercise required under article 8. For the court, if an applicant can show that there are individual interests at stake covered by article 8 which give rise to a strong claim that compelling circumstances may exist to justify the grant of leave to enter outside the rules, the fact that their case is also a “near miss” case may be a relevant consideration which tips the balance under article 8 in their favour. It was said that in such a case, the applicant will be able to say that the detrimental impact on the public interest in issue if leave to enter is granted in their favour will be somewhat less than in a case where the gap between the applicant’s position and the requirements of the rules is great, and the risk that they may end up having recourse to public funds and resources is therefore greater.

However, the court said that applicants must desist from expecting the decision-maker to speculate about any improvements in their earnings and applications should be made once the rules could be met. The court also said at para 57 that it would be improper for applicants “on the horizon” to be able “to jump the queue by asking for preferential treatment outside the rules in advance” because the state was entitled to operate the rules “in the usual way” and those who failed them could reapply at a later time. (The expression “on the horizon” being synonymous with the existence of a reasonable prospect that in the near future, within weeks or months, the sponsors would in fact be able to satisfy the requirements of the rules.) Most of all, decision-makers cannot be “required to take a speculative risk as to whether the requirements in the rules will in fact be satisfied in the future when deciding what to do.”

The court took the middle ground. On the one hand, it held that although marginally missing the minimum requirement does not amount to compelling circumstances warranting the grant of leave to enter. Conversely, it was also said that marginally missing the minimum requirement might possible tip the scales. But all this needed to be read against the general warning that the tactic of making an unsatisfactory application (which failed on the rules) and later curing it on appeal (by meeting the rules at a future date by using post-decision evidence) in the hope that the court or tribunal would grant leave to enter (a) is an illegitimate way of trying to jump the queue (b) is an improper attempt to subvert the operation of the rules and (c) is precluded by sections 85 and 85A(2) of the Nationality Immigration and Asylum Act 2002 (which applied to the present case).

The Justices’ Thoughts

As Lord Wilson said during the hearing, the court can spend days and days on discussing the cases but what is central in these proceedings is that if the August 2015 guidance is sufficiently capacious for a valid article 8 claim to be made and be accommodated then the government may well be home free. But as his Lordship made clear, the home secretary’s case is that the rules generally allow an article 8 compliant outcome – a stance that his Lordship did not see as striking a fair balance. The government concedes that the guidance may be flawed and is reviewing it and if it is fixed it is seen as curing any flaws in the scheme created by the rules.

Lady Hale seemed deeply concerned about British children who are being forced to live outside the UK because of the rules. A child in such a predicament is entitled to enter the UK but will be separated from the foreign parent on entering because of the “choice” under the rules, which causes the family to be broken up and separated if such a child comes to live in the UK and the other non-British parent is left behind. Because her Ladyship was thinking of the rights under the Immigration Act 1971 and related British statutes, she seemed quite irritated when the words “Zambrano-Dereci” were muttered by the government’s advocate. During the hearing, Lady Hale tended not to see things in black and white through the lens of the bright-line rules laid down in Appendix FM. Similarly, she insisted that children outside the territorial reach of section 55 were still covered under the guidance and the overall principle of protecting their interests.

But, despite it all, it was the case of the government that the evidence of the Children’s Commissioner was not compelling because the exact circumstances of the families involved were unknown and the statistics generated were untested and unreliable. The government’s excuse for not dealing with the issues properly was that the information came far too late in the day. However, Lady Hale apologised for the court’s delay in granting permission to intervene which seems to have created the problem in the first place.

In any event, the home secretary’s butler immigration minister Brokenshire is a rather disingenuous individual and in his letter to the Children’s Commissioner he disputes all her findings but expresses a wish to meet her to discuss the situation. For him, family migrants must not be a burden on the state and must integrate in the UK. Migrants are welcome so long as they can work hard and make a proper family life, but they must contribute and play a full part in British life. Otherwise they are undesirable and must not enter the UK. Brokenshire also claims that the Annual Survey of Household Earnings 2014 shows that “the median gross earnings of those in employment exceeded £18,600 in every country and region of the UK”.

It is also interesting that the government’s official position in the Supreme Court differs from the Court of Appeal’s rationale that ECOs can be requested on the basis of exceptional circumstances in refused cases to grant leave on the basis of article 8. Post SS (Congo) the situation in tribunal appeals is that if you are not in the rule you are finished as the rule is the be all and end all, and totally encapsulates proportionality; this produces catastrophic consequences when children are involved. The fact that since 2012 merely 22 entry clearance cases have succeeded – after being referred to the Referred Casework Unit (RCU) for consideration of a grant of entry clearance outside the rules in family cases – shows the utter disregard for article 8 rights. Of course, all this is further complicated by putting the judiciary under extra stress with the swelling number of appeals which take at least a year to even be heard.

Exceptional article 8 cases are not considered at source and are instead forwarded by ECOs, who strictly speaking are servants of the foreign secretary and not the home secretary, onto someone in London who has a think about things while the separation of the family unit is prolonged. The online forms in relation to entry clearance family migration applications do not make an allowance for children’s interests to be registered or recorded. It is as if they do not exist or are invisible. At the end of the hearing, Lady Hale said that the justices were very grateful to the parties for giving them “such a lot of homework and food for thought” and her Ladyship indicated that it will be some time before the court decides the outcome of the appeal.

Comment

Examined in comparative historical perspective, it is mind-boggling that the rules for partners are crafted to inflict maximum suffering on the people of Africa and Asia who contributed to the British imperial project. Of course, the rules are colour blind but foreign migrants with British nationality (who routinely get married overseas in their home communities and then sponsor their partners for marriage visas) and refugees are harder hit by the MIR. Activists such as Don Flynn of the Migrants’ Rights Network explain: “In any case I have ever been involved with, the Home Office has not once exercised any discretion.” Mr Flynn explains that the MIR must be met for visas to be granted. Personally, I can add that even when the MIR is met entry clearance staff still manage to find other brutal ways to refuse admission to people who have not been deceptive and are clearly honest individuals but are accused of sham marriages.

Viewed from any angle – i.e. an anti-MIR position, a position of neutrality, or even from a pro-MIR viewpoint – a serious issue of concern arises in these appeals as regards whether Parliament intended that legislation such as the Immigration Act 1971 and connected statutes should create rules that lead to virtually all applications being refused and create an administratively difficult environment which makes the First-tier Tribunal the place where article 8 ECHR rights are recognised and enforced? Another issue stressed by the appellants was whether it is appropriate for the home secretary to use Appendix FM to control family migration in a way akin to controlling the right of economic workers under the rules? On the first day of the hearing after dealing with issues of anonymity, on hearing complaints that the rules were being treated as the final solution to article 8, Lady Hale did insist that, unlike the Human Rights Act, the immigration rules are not the law and courts and tribunals are not bound by them.

However, at one point during the course of these hearings Lady Hale ordered a wailing child’s removal from the courtroom and, given that foreigners from Africa and Asia are quite superstitious, that may even be a bad omen for the future. Yet irrespective of the outcome in these cases, the clear differences in the style of presentation of the arguments were quite hilarious to observe. And although no disrespect is meant to her, the government’s top advocate just came across as a more sophisticated version of the uncouth presentation officers who can be found rampaging across the entire tribunal system. The big difference of course is that in comparison to the negligent/yawing tribunal judges, the Supreme Court’s justices are very interested in the minutiae of the law, so much of which desperately requires their attention.

In the Supreme Court’s judgment on the pre-entry language test litigation (Ali and Bibi [2015] UKSC 68, see here), Lord Hodge mentioned MM & Ors to make the point that Aikens LJ made below, i.e. the court is not entitled to strike down an immigration rule unless satisfied that the rule was incapable of being operated in a proportionate way and so was inherently unjustified in all or nearly all cases.

Consequently, the appellants in Ali and Bibi failed to demonstrate that the rule itself constituted an unjustifiable interference with article 8 rights and the court held that it is lawful to require foreign spouses or partners of British citizens to demonstrate – in the form of a certificate – knowledge of English to a prescribed standard before entering the UK.

In Agyarko and Ikuga [2015] EWCA Civ 440, “precariousness” cases involving overstayers who relied on their relationships with British citizens in order to obtain leave to remain, the Court of Appeal (Longmore, Gloster and Sales LJJ) held that for leave to remain to be granted on that basis a claimant needed either to show “insurmountable obstacles” to continuing family life outside the UK or needed to demonstrate “exceptional circumstances” under article 8 ECHR. Mrs Agyarko and Mrs Ikuga were aggrieved by the Upper Tribunal’s refusal of permission to apply for judicial review proceedings of the Home Office’s refusal to grant them leave to remain. Agyarko (a Ghanaian) and Ikuga (a Nigerian) relied on their respective family lives to get leave to remain. However, their applications were refused because they failed on section EX.1(b) of Appendix FM in light of the finding that there were no “insurmountable obstacles” preventing them from continuing their relationships outside the UK and that no exceptional circumstances under article 8 existed.

The court dismissed the appeals in light of Nagre [2013] EWHC 720 (Admin) – a judgment that is said to contain “an accurate statement of the law”. In line with his own decision from a couple of years ago, Sales LJ held that where a person unlawfully overstays and forms a relationship or gets married and wishes to remain the UK, the test of “insurmountable obstacles” is a “stringent” test and as used in the rules clearly imposes a high hurdle to be overcome by an applicant for leave to remain under the rules. For Sales LJ the test is significantly more demanding than a mere test of whether it would be reasonable to expect a couple to continue their family life outside the UK.

The court, moreover, explained that although the test is also to be interpreted in a sensible and practical rather than a purely literal way, it is more demanding than a mere test of whether it would be reasonable to expect a couple to continue their family life outside the UK. It is worth noting that permission to appeal in Agyarko and Ikuga was granted on 3 November 2015 by Lady Hale, Lord Wilson and Lord Carnwath at the same time as SS (Congo) but the matter does not presently appear on the court’s current cases list.

Because the poor are expendable in the eyes of British policy makers, these rules are designed to keep out the unwanted for the sin of poverty. Unless the Supreme Court can prove otherwise, it is clear from the content of the present immigration rules that the British are generally full of hatred for most foreign people but they totally seem to love corrupt foreign elites with dirty money to invest in shares, bonds and London’s property market etc. All this is not too surprising though because back in the old days the British ran their empire by constantly increasing the extortionate salt tax on Indians, ultimately making it illegal for people to manufacture salt under a so-called “uniform salt tax policy”. So in that way, all the devastation produced by Appendix FM is nothing more than history repeating itself.

About mkp

Advocate High Courts of Pakistan
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9 Responses to Article 8 and MIR: Appendix FM in Supreme Court

  1. mkp says:

    Just to update this post, Lady Hale, Lord Kerr, Lord Wilson, Lord Reed, Lord Carnwath, Lord Hughes, Lord Hodge heard Ikuga’s case on 06 Apr 2016-07 Apr 2016.

    This is the case summary per the UKSC’s site:

    R (on the application of Ikuga) (Appellant) v Secretary of State for the Home Department (Respondent)

    https://www.supremecourt.uk/cases/uksc-2015-0130.html

    Case ID: UKSC 2015/0130

    Case summary

    Issue

    Whether the requirement that an applicant for leave to remain in the UK, who formed a relationship with a British citizen while present in the UK unlawfully, must demonstrate either “insurmountable obstacles” to that relationship continuing in a different country or “exceptional circumstances” to justify consideration outside the scope of the Immigration Rules, is compliant with art.8 ECHR.

    Whether the tests of “exceptionality”, “exceptional circumstances” or “compelling circumstances” where applicants for leave to enter or remain do not satisfy the Immigration Rules are compliant with art.8 ECHR.

    Facts

    Both appellants came to the UK, overstayed their visas, and subsequently formed relationships with British citizens. They submitted applications for leave to remain on the basis that those relationships were protected by their right to respect for their family life under art.8 ECHR. The Secretary of State refused their applications because they could neither satisfy the requirements of Appendix FM of the Immigration Rules, which governs the grant of leave to family members, nor establish that compliance with art.8 would mandate the consideration of leave outside the scope of the Immigration Rules. Applicants whose family life with their partners is “precarious” (i.e. commenced at a time when their presence in the UK breached immigration law) will not be granted leave under Appendix FM unless they can demonstrate “insurmountable obstacles” to that family life continuing elsewhere. The Secretary of State has a residual discretion to grant leave to applicants who do not satisfy the requirements of the Immigration Rules, but will only do so where there are “exceptional circumstances” such that refusal of leave would amount to a disproportionate interference with art.8 rights.

    Judgment appealed: Agyarko & Ors, R (on the application of) v The Secretary of State for the Home Department [2015] EWCA Civ 440 (06 May 2015)

    http://www.bailii.org/ew/cases/EWCA/Civ/2015/440.html

  2. Najib says:

    thanks for your post and update. Is there an estimated time when the decision going to be made by court on mm case and other similar case?

  3. mkp says:

    “Artikel 8 und MIR, Artikel 8 und MIR” sounds like something Angela Merkel sings in the Chancellery when she is bored! I always wanted to write that in the first paragraph but was able to restrain myself on the day! ha

  4. pete says:

    burden on the tax payer , the truth its to help found visa control , if you just made £15000 how will you live and pay for the visa,s over the next 5 years you are looking at paying about £10,000 plus solicitor cost and the cost for test, so if the court say no more £18600 rule but now only need to make £15000 a year , you will lose your family because you have no money for the visa,s , we need food too

  5. mkp says:

    With £15,000 you’d be well within the level identified by the Migration Advisory Committee (MAC) as the lowest maintenance threshold under the benefits and net fiscal approach. But of course they want British people to go and live overseas to be with their foreign families.

    • pete says:

      lets be real , our mrs may want you to fund visa control, if you made £15000 a year and remember no public funds, yes you can live on £15000 a year, but mrs may want your money too ,pay for test , pay for visa,s , and remember the new extra national insurance you need to ( pay ) even if you are both working and paying through your wages , and pay for solicitors , i did not use a solicitor , but would say use if you got the money because our mrs may will keep your visa money if you dont get your visa , mrs may wanted it to be £40,000 not 18,600 ,( why ) she want you to fund visa control , if i was just on £15000 my family would not be here now, over the next 5 years take off £10,000
      ( min ) of your wages see how much you have left to pay rent, food ,bills , and remember you could lose time from work, ( so what am i saying ) lower the £18600 , but also need to stop these fees ,test,,,,,visa…. extra national insurance fee, , and you are wrong , she want you and your foreign family here ,WHY because she want your money , if you are poor cant pay your fees ,YES GO AWAY GO AND LIVE OVERSEAS,

      MRS MAY IS NOT A NICE PERSON, it would be ok if court does lower the £18600 to £15000 ,why if you are poor cant pay the visa fees you will lose your family ,and these people who say you can live on £15000 (mac) plus pay solicitor and fees should try it

  6. mkp says:

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