Supreme Court: MIR is Lawful

MM (Lebanon) & Ors v SSHD and Anor [2017] UKSC 10 (22 February 2017)

Victims of the dreaded Minimum Income Requirement must have preferred the first instance judgment when they enjoyed greater success before a single judge. Afterwards the Court of Appeal decided otherwise by holding that the MIR is lawful. The Supreme Court sadly followed suit. Containing a core feature that demands a gross annual income of £18,600 to sponsor a partner for a visa, the MIR imposes additional requirements of £3,800 for the first child and £2,400 for each child thereafter. All this does not apply to EEA-nationals but applies to British citizens and settled migrants. It also applies to refugees, and those granted humanitarian protection, aiming to sponsor a post-flight partner and dependent child or children. Although the MIR allows minimum specified savings of £16,000 to rectify an income shortfall, neither the non-EEA partner’s income nor third-party support can be taken into account in calculating the UK partner’s income. The wheels of justice were slow to turn for the appellants and these proceedings arose out of the Immigration Rules introduced in June 2012. Back then Brexit was nowhere on the horizon. It was completely unheard of. But poor families suddenly split apart by Appendix FM had to wait for the more important judgment in Miller [2017] UKSC 5 to be pronounced first.

Stretching back many years, the lengthy litigation created by the harsh new mechanical system ultimately ended in an overall defeat for ordinary people because Lady Hale and Lords Kerr, Wilson, Reed, Carnwath, Hughes and Hodge held that the MIR is acceptable in principle. However, they also decided that the rules and the Immigration Directorates Instructions unlawfully fail to take proper account of the duty owed to the child under section 55 of the Borders, Citizenship and Immigration Act 2009. Apart from being almost impossible to understand because of having been drafted in an unfriendly style, the reformatted rules entailed a previously unseen, indeed almost unknown, type of calculus. Boosting refusals, alien variables crept into ordinary immigration applications. Nothing even faintly resembling the new system had ever been seen before.

Background

The exact number of people affected by the MIR is unknown. The UK’s median full-time gross earnings for 2012 were £26,500. But this was an unreliable indicator of the £18,600 benchmark’s suitability because of income disparities connected to gender and regional and occupational differences. The national minimum wage was £13,600 at the time and the Migration Advisory Committee identified the lowest threshold as £13,400. Yet MAC recommended that the income threshold should be set between £18,600 and £25,700 per annum.

Existing sponsor profiles indicated that the £18,600 threshold would be unmet in 45% of cases. Moreover, a staggering 64% of cases would fail the £25,700 threshold. Despite the absence of a cap on actual numbers, reducing net migration and restoring public confidence in the system were key policy ideals. Public services would be strengthened as a consequence of the reduction in net migration. For the purposes of the MIR, partner means a spouse or fiancé(e), a civil partner or proposed civil partner or someone living in a relationship resembling marriage or civil partnership for at least two years. From 2012 to 2014 approximately 30,000 partner applications were refused. Since ECOs are unable to grant admission outside the rules a mere 52 cases were referred to the Referred Casework Unit for such consideration. Strikingly only 26 succeeded.

(i) MM (Lebanon) & Ors

MM, AM, Master AF and SJ brought judicial review proceedings against the MIR, which they challenged without making any actual applications. They alleged that the MIR was incompatible with their ECHR rights under articles 8, 12 and/or 14. They also argued that the MIR is unreasonable and ultra vires on common law principles. Since compatibility with article 8 of the ECHR was achievable, the court declined to strike down the rules incorporating the MIR. Blake J nevertheless held that despite having a legitimate aim, the MIR produced such an onerous effect that it was bound to be an unjustified and disproportionate interference with the ability of spouses to live together contrary to their rights under article 8: [2013] EWHC 1900 (Admin).

Subsequently, Maurice Kay, Aikens and Treacy LJJ held that the MIR was not a disproportionate interference with the UK partners’ article 8 rights: [2014] EWCA Civ 985. Rejecting Blake J’s approach, Aikens LJ held at para 137 that the UK partner’s unhindered right to reside in the UK was a “personal right” because:

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.

The court concluded at para 152 that Blake J’s analysis was incorrect because in principle the MIR is capable of being compatible with the article 8 rights of the UK partners and others.

(ii) SS (Congo)

SS became connected to the proceedings in the Supreme Court. She was successful against the refusal of entry clearance because despite her failure to meet the MIR, the First-tier Tribunal allowed her appeal on article 8. She also succeeded in the Upper Tribunal but the Court of Appeal allowed the Entry Clearance Officer’s appeal: [2015] EWCA Civ 387.

According to Richards, Underhill and Sales LJJ, the tribunals had been wrong to rely on Blake J’s decision and their erroneous approach suffered from a failure to ascribe proper weight to the MIR 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.

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. 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.

The Supreme Court

Disagreement did not find its way into the justice’s conclusions. In a collaborative judgment, Lady Hale and Lord Carnwath, with whom the other justices agreed, held that the challenge to the MIR’s validity failed. However, the court declared that the rules are unlawful because of their failure to give effect to the section 55 duty concerning children’s welfare. The court restored the Upper Tribunal’s decision in SS’s case and allowed her appeal. It also partially allowed MM, AM, Master AF and SJ’s appeals.

The lawfulness of the pre-entry language requirement, decided in Bibi [2015] UKSC 68 (see here), contained an express exemption on the basis of “exceptional circumstances”. No equivalent exemption, or reference to exceptional circumstances, existed in the rules underpinning the MIR at the entry clearance stage. Since respecting ECHR rights is obligatory, the court found “no question of the rules relating to the MIR being a ‘complete code’.”

(i) Human Rights Challenge

The Human Rights Act 1998 binds the executive to exercise her powers under the Immigration Act 1971 compatibly with ECHR rights. In contrast to Hesham Ali [2016] UKSC 60 (see here) or Agyarko [2017] UKSC 11 (see here), these appeals invited the court to consider the legality of the rules per se, rather than their direct application to individual cases. In any event, the four-stage proportionality test in Quila [2011] UKSC 45 and Bibi applied in order to decide the “ultimate issue”, focusing on the fourth stage, whether a fair balance between the individual and public interests had been struck in light of the Strasbourg jurisprudence and the overall weightiness of children’s interests.

Lord Hodge said in Bibi at para 69 that an immigration rule could not be struck down unless the court was satisfied that it could not be operated proportionately and was therefore always or nearly always “inherently unjustified” in individual cases. Approving of Aikens LJ’s approach in the present cases, his Lordship pointed out the fact that rather than the relevant general rules or policies, as a rule of thumb, it is the decision in an individual case which may be incompatible with the ECHR rights.

Mahad [2008] EWCA Civ 1082 left little doubt that decision-makers and courts must safeguard immigrants’ article 8 rights irrespective of whether compliance is achieved through the mechanism of the rules. Laws LJ remarked at para 39 “the rules are not of themselves required to guarantee compliance with the article.” Bearing his method in mind, the Supreme Court held:

58. There would no doubt be a breach of that duty if the rules were to be couched in a form which made non-compliance in individual cases practically inevitable. But that is not the position in the present context.

It was expressly accepted by the executive that failing the MIR did not warrant automatic refusal because she retained a discretion to grant entry clearance outside the rules when appropriate in line with the 1998 Act’s principles. The general provisions of the rules contemplate a two-stage process and a fact- sensitive consideration of any human rights issues outside the rules is required at the second stage. Since any appellate proceedings arising out of a refusal require the tribunal to ensure consistency with the ECHR, the Supreme Court held that:

60. This analysis provides a simple answer to the central issue in the case. It removes any substantial basis for challenging the new rules as such under the HRA. It follows that such a challenge in the present context must stand or fall under common law principles.

Given that the rules only partially reflect the decision-making process, it needed to be shown that the rules in question misinterpret the Immigration Act 1971, are inconsistent with its purposes or are otherwise irrational. The main question was whether anything in the entry clearance instructions unlawfully prevented or inhibited officials from performing a full “merits-based” assessment as required by the 1998 Act.

(ii) Huang and the New Rules

Acrimony between the court and the executive erupted in the judgment nevertheless because of the way in which the home office understood the decision in Huang [2007] UKHL 11. The decision of the House of Lords was used to justify the creation of Appendix FM because the ruling allegedly caused “unpredictability and inconsistency which are anathema to good administration” by focusing on individual cases. Rather than reviewing the proportionality of individual administrative decisions, these problems were best solved by reviewing the proportionality of the rules. Particularly, the executive’s rationale for introducing the new rules was dually “distorted” in connection to Huang and the legislative scheme. The latter would have “involved a misdirection in law” had it been left to its own devices. Three glaring misconceptions stood out and the court did not try to mask the irritation it felt.

First of all, Huang was not about the executive’s relationship with the courts. Rather, it was about her relationship with the specialist appellate system created by Parliament to hear appeals by generated by adverse decision-making. Parliament’s rules governed the system and it required article 8 issues to be addressed unrestrictedly by the tribunal. Huang was just expressing Parliament’s will, which only came to be altered much later by the Immigration Act 2014. Secondly, the House never said that the executive’s policy should be disregarded and that decisions should be made exclusively on a case-by-case basis. To the contrary, predictability and consistency were crucial for a workable, predictable, consistent, reputable and fair system of immigration control.

Finally, Huang did not imply that article 8 could be transposed into the rules via a “rigid template” to preclude the tribunal from considering special cases outside the rules. EB (Kosovo) [2008] UKHL 41 prohibited any “hard-edged or bright-line rule to be applied to the generality of cases” and it was common ground that an alternative approach would contradict the mandatory evaluative exercise in assessing the proportionality of a measure under article 8. Criticising the home office’s “changing case”, the justices expressed sympathy with the appellants having to hit a “moving target” in relation to their arguments based on common law illegality because the government’s final position – that discretion outside the rules endured – differed significantly from statements made in 2012.

(iii) The MIR in Principle

The Children’s Commissioner reviewed the MIR’s disastrous effects. Inevitably, it disturbed an array of familial relationships. However, significant hardship alone did not make the MIR unlawful. Even though those affected could not be blamed for their predicament, this did not equate with ECHR incompatibility or common law unlawfulness. Contrasted with Quila the MIR did not prevent a couple from getting married. Yet it does create a serious obstacle to the enjoyment of family life together. Those affected by the rule in Quila experienced temporary difficulties whereas victims of the MIR were the poor and their problems were likely to be permanent. Women, minorities and people from low-income areas suffered the most.

Nonetheless, Quila lacked an “immigration dimension” because the measure purported to deter forced marriages but remained disconnected from the purpose of controlling immigration. The situation was different and the MIR’s aims were absolutely legitimate and ensured that couples do not burden the public purse and are sufficiently endowed “to play a full part in British life”. A strategy of reducing net migration sufficed. The interference with article 8 was justified and there was a rational connection between these legitimate aims and the specific choice of income threshold. MAC’s work represents “a model of economic rationality” for the court and any assumptions it made had been identified and rationalised.

Equally, in Konstatinov v Netherlands [2007] ECHR 336, the ECtHR had confirmed that the MIR is acceptable in principle. Konstatinov concerned the expulsion of a woman, born in Serbia but of Roma origin, from the Netherlands with convictions for robbery and theft. Among other things, the refusal of the Staatssecretaris van Justitie asserted that she was not entitled to a residence permit because her husband failed to satisfy the MIR under the applicable Dutch rules. The domestic courts upheld that finding and the ECtHR agreed and held that:

50. In principle, the Court does not consider unreasonable a requirement that an alien having achieved a settled status in a Contracting State and who seeks family reunion there must demonstrate that he/she has sufficient independent and lasting income, not being welfare benefits, to provide for the basic costs of subsistence of his or her family members with whom reunion is sought.

The stark reality of these principles provided an important foothold for the government’s argument and did little to provide comfort to the MIR’s victims. But perhaps the Supreme Court’s findings on the position of children under the rules represent a limited victory.

(iv) Treatment of Children

Six years after setting its own high standards in ZH (Tanzania) [2011] UKSC4, the court was guided by the ECtHR’s decision in Jeunesse v The Netherlands (2015) 60 EHRR 17. The determining factor in Jeunesse was that authorities had to give adequate weight to the impact on the children – deeply rooted in the Netherlands – of the removal of their mother who was their primary carer.

The problem confronting the justices was that only one child – i.e. Master AF – was involved in these proceedings. Indeed, Blake J was concerned that it was hard to do justice “in the context of a generic challenge to legality of the rules as such.” Nevertheless, an opportunity presented itself for the Supreme Court to shed much needed light on the touchy subject of children’s best interests. The justices rejected the proposition that the 55 duty had been taken into account and held:

92. … The duty imposed by section 55 of the 2009 Act stands on its own feet as a statutory requirement apart from the HRA or the Convention. It applies to the performance of any of Secretary of State’s functions including the making of the rules. We would grant a declaration that in this respect both the rules and the instructions are unlawful.

Nothing in paragraph GEN.1.1 could be interpreted as meaning that the whole of Appendix FM was compliant with the duty owed to children and gaps in the rules had not been adequately filled by the instructions. Versatility is not the overall system’s hallmark. Instead, a high degree of stringency is a central trait of the instructions and doubt existed whether the applicant in Jeunesse could herself meet the inexorable tests – prefaced by “only” – relating to abandonment and medical emergency.

Therefore, steered by the Jeunesse principles, the defective guidance needed to be amended. The claim in GEN.1.1 about the section 55 duty’s incorporation into the rules “is wrong in law.” References in GEN.1.10-11 regarding separate consideration under article 8, but not section 55, could not cure the defects because “it should be clear from the rules themselves that the statutory duty has been properly taken into account.”

(v) Alternative Sources of Funding

The difficulties surrounding promises of third party support could minimally be traced back to Arman Ali [1999] EWHC Admin 830. The theme was revisited a decade later in Mahad [2009] UKSC 16. Lord Brown stressed the cardinal principle that it is always up to an applicant to satisfy the decision-maker “that any third party support relied upon is indeed assured.” Indeed, as Collins J noted in Arman Ali, the question was one of fact and needed to be determined on the evidence.

In the present proceedings, Aikens LJ had rightly observed that the decision to exclude third party funding had not been taken whimsically. The stringency of the approach was embedded in practicality rather than wider policy. Admittedly, exclusions on the prospective earnings of the foreign partner or third party support guarantees in meeting the MIR were harsh. But the justices said that:

98. … In our view, it was not irrational in the common law sense for the Secretary of State to give priority in the rules to simplicity of operation and ease of verification.

Conversely, operating a narrow approach outside the rules is a separate matter. The evaluative exercise under article 8 demands otherwise. Indeed, since judges are able to discern the reliability of alternative financial sources there is “little sense” in forcing decision-makers to adopt a more restrictive approach. The upshot was that the instructions to ECOs needed revision to achieve consistency with the 1998 Act’s ideals. However, whether it would be more efficient to reformulate the rules themselves to achieve this in reality was the executive’s own decision.

(vi) SS’s Appeal

The tribunal had found “insurmountable obstacles” to SS living with her husband in the DRC. In light of this finding, errors on other points such as adopting a £13,400 guideline for the MIR did not warrant the appeal to be remitted for rehearing after a long delay because the outcome of the appeal would be the same. Consequently, any legal errors were immaterial and factually speaking the extreme interference with SS’s family life would be unjustified. Of course, consistency at the tribunal level was highly desirable. However, Lord Carnwath himself observed in Mukarkar [2006] EWCA Civ 1045 that it was natural for tribunals to reach different conclusions on similar cases but “that on the facts of the particular case, the decision of the specialist tribunal should be respected.”

Comment

This judgment has finally brought closure to the uncertainty caused by the onset of the MIR. The saga has finally come to an end and the Supreme Court’s findings entail significant negativity for ordinary people because the MIR is valid. That is clearly not the fairy tale ending that applicants and human rights activists had longed for. Overall, it still remains that the rules in play are not the be all end all to article 8 and section 55 issues that they had purported to be for five long years. The pain caused to families by Appendix FM is undeniable and according to counsel for the lead appellant, “this judgment will be a great relief to many of them.”

However, the glaring contradiction in the rules, and indeed the court’s judgment, is that monetary might continues to make right because people with £62,500 in cash savings (held for six months) can comfortably overreach the MIR. The system is far from egalitarian because it deliberately creates two realities: one for the rich, and another for the unwanted poor. It will be interesting to see whether the court’s judgment will encourage the home office to enhance the MIR’s threshold in order to exclude the unwanted in future times and gentrify British society even further.

About mkp

Advocate High Courts of Pakistan
This entry was posted in Appendix FM, Article 12, Article 14, Article 8, Children, ECHR, Immigration Act 2014, Immigration Rules, Judicial Review, MIR, Proportionality, s 55 BCIA, Spouses, UKSC and tagged , , , , , , , . Bookmark the permalink.

One Response to Supreme Court: MIR is Lawful

  1. truthaholics says:

    Reblogged this on | truthaholics and commented:
    ” Apart from being almost impossible to understand because of having been drafted in an unfriendly style, the reformatted rules entailed a previously unseen, indeed almost unknown, type of calculus. Boosting refusals, alien variables crept into ordinary immigration applications. Nothing even faintly resembling the new system had ever been seen before.”

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s