Aligning the Immigration Rules with MM (Lebanon)

Judicial review claims known as MM (Lebanon) & Ors [2017] UKSC 10 challenging the Minimum Income Requirements (MIR) under Appendix FM ended in overall disappointment for divided families. Partial success at first instance resulted in momentary jubilation. But ultimately, following Konstatinov v Netherlands [2007] ECHR 336, the Supreme Court held that the MIR is acceptable in principle despite having “a particularly harsh effect”. Since the judgment still had some emollient undertones in relation to alternative sources of funding and children’s rights, Statement of Changes to the Immigration Rules HC290 (20 July 2017) slightly relaxes the stringency of the original mechanics governing Theresa May’s crippling and incomprehensible “new rules”. Full legal clarity on the MIR’s calculus came five long years after its creation and JCWI, which intervened in MM (Lebanon) along with the Children’s Commissioner, condemned the changes as “inadequate” and accused the government of “tinkering at the margins”. The changes mean that in circumstances where reliance is placed on other sources of funding to boost an application, a 10-year route to settlement will be available to applicants with further scope to later re-enter the five-year route in cases where they subsequently meet the relevant requirements. New provisions in Appendix FM reflect the ongoing duty owed in relation to children’s best interests and HC290 also addresses the overall proportionality balance of the Immigration Rules.

The MIR demands a gross annual income of £18,600 to sponsor a partner for a visa. It imposes additional requirements of £3,800 for the first child and £2,400 for each child thereafter. It applies to British citizens, settled migrants, refugees and those granted humanitarian protection aiming to sponsor a post-flight partner and dependent child or children. The changes also claim to create “a complete framework” for considering article 8 claims by a partner, child, parent or adult dependent relative under Appendix FM. The changes in HC290 apply from 10 August 2017 and will affect all decisions made on or after that date. Notably, the test of exceptional circumstances (see here) is also provided an express footing within the Immigration Rules for cases where refusal results in unjustifiably harsh consequences for the applicant or their family. The Supreme Court approved of the test in Agyarko and Ikuga [2017] UKSC 11 and the transposition of the test, found hitherto in the guidance, brings the test of proportionality under article 8 into the rules.

The effect of the Supreme Court’s judgment was to prompt the home office to put a temporary hold on decision-making related to applications headed for refusal under Appendix FM. At the end of last month, approximately 5,000 applications remained on hold and HC290 facilitates decision-making connected with those and future applications in line with the judgment in MM (Lebanon). The MIR allows minimum specified savings of £16,000 to rectify an income shortfall. But before HC290, the non-EEA partner’s income or third-party support were precluded from the total income available. Estimates suggest that 41 per cent of the British workforce, including 55 per cent of women, is precluded from bringing a foreign spouse to join them in the UK. Of course, all this is part and parcel of the government’s failed pledge to reduce net migration to the “tens of thousands”.

From 2012 to 2014, approximately 30,000 partner applications were refused and only a handful of applications were granted outside the rules. The judgment identified that, in addition to those permitted, other reliable sources of earnings or finance should be taken into account in circumstances where refusal of the application could otherwise breach article 8. Equally, Appendix FM failed give direct effect to the duty under section 55 of the Borders, Citizenship and Immigration Act 2009 to treat, as a primary consideration, a child’s best interests in an immigration decision affecting them.

The difficulties surrounding promises of third party support are traceable to Arman Ali [1999] EWHC Admin 830. Lord Brown revisited the theme a decade later in Mahad [2009] UKSC 16 and 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. The framework created by HC290 for third party support to be considered genuine, reliable and credible sets a high standard of proof by way of documentary evidence.

It was clear from MM (Lebanon) that since even 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 principles of the Human Rights Act 1998. However, Lady Hale and Lords Kerr, Wilson, Reed, Carnwath, Hughes and Hodge held that whether it would be more efficient to reformulate the rules themselves to achieve this in reality was the executive’s own decision.

The changes are achieved by inserting new general provisions in Appendix FM in the form of paragraphs GEN.3.1. to 3.3. in order to require decision-makers, in the specified circumstances, to consider whether MIR is met if the other sources of income, financial support or funds set out in the new paragraph 21A of Appendix FM-SE are taken into account. The specified circumstances are twofold. First, the MIR is not otherwise met. Second, it is evident from the information provided by the applicant that exceptional circumstances exist and could make refusing the application a breach of article 8 because unjustifiably harsh consequences could arise for the applicant, their partner or a child under the age of 18 years who it is evident would be affected by a decision to refuse the application.

The new provision in paragraph 21A of Appendix FM-SE accommodates other sources of income, financial support or funds for decision-makers to take into account in such cases. The other sources are (i) a credible guarantee of sustainable financial support from a third party (ii) credible prospective earnings from the sustainable employment or self-employment of the applicant or their partner or (iii) any other credible and reliable source of income or funds available to the couple. Moreover, paragraph 21A also makes provision for particular factors for decision-makers to consider in determining the genuineness, credibility and reliability of such other source of income, financial support or funds. The development in paragraph 21A is positive because unlike the current rules it obliges decision-makers to consider whether the MIR can be satisfied by taking into account other sources of income, financial support or funds.

However, by way of a genuineness test, the onus is on the applicant to satisfy the decision-maker of the genuineness, credibility and reliability of the source of income, financial support or funds relied upon, on the basis of the information and evidence provided. Equally, the applicant must demonstrate by way of evidence that any envisaged employment or self-employment must begin within three months of the applicant’s arrival or leave to remain being granted in the UK. Verifiable documentary evidence is important and employment offers must be made on corporate/official letterheads and should be accompanied by a signed or draft employment contract.

Moreover, prospects of self-employment must be demonstrated by a signed or draft contract for the provision of goods or services, a signed or draft partnership or franchise agreement, an application to the appropriate authority for a licence to trade or details of the agreed or proposed purchase or rental of business premises. It is vital that “a clear basis for self-employment exists” or “a specific offer of employment has been made”. Out of a total workforce of 32 million, almost a million people in the UK are employed on zero-hours contracts in their main job. These workers are likely to be young, part-time, women and students and it remains to be seen whether potential earnings from zero-hours contracts will be rebuked by immigration decision-makers. Equally, employers using zero-hours contracts tend not to make an “offer” of employment on their official letterhead.

Centrally, the terms of HC290 stipulate that the source of income, financial support or funds must not be a loan, unless evidence submitted with the application shows that (i) the source is a mortgage on a residential or commercial property in the UK or overseas which at the date of application is owned by the applicant, their partner or both, or by the third party (ii) the mortgage is provided by a financial institution regulated by the appropriate regulatory body for the country in which that institution is operating and (iii) the mortgage payments are reasonably affordable by the person(s) responsible for them and are likely to remain so for the period of limited leave applied for. Any cash savings or any current financial investment or product relied upon must at the date of application be in the name(s), and under the control, of the applicant, their partner or both.

Of course any involved third party must enjoy firm and secure financial circumstances. Bankrupts and those in debt are best avoided and the third party must provide (i) sufficient evidence of their general financial situation to enable the decision-maker to assess the likelihood of the guaranteed financial support continuing for the period of limited leave sought (ii) verifiable documentary evidence of the nature, extent and duration of any current or previous financial support which they have provided to the applicant or their partner (iii) sufficient evidence of their general financial situation to enable the decision-maker to assess the likelihood of the guaranteed financial support continuing for the period of limited leave sought (iv) verifiable documentary evidence of the nature, extent and duration of any current or previous financial support which they have provided and (v) the likelihood of a change in the third party’s financial situation or in their relationship with the applicant or the applicant’s partner during the period of limited leave sought.

In Agyarko and Ikuga, the Supreme Court reiterated its conclusion in MM (Lebanon) that in article 8 cases the key principle is to strike a fair balance between the competing public and individual interests involved in light of a proportionality test. Where the requirements of Appendix FM have not been met the changes also require, in light of the information made available by the applicant, consideration to be provided to whether there exceptional circumstances arise by way of which refusal of the application results in a breach of article 8 because it would result in unjustifiably harsh consequences for the applicant or their family. This directly incorporates the proportionality test into the Immigration Rules which consequently provide a complete framework for coverage of article 8 issues under Appendix FM vis-à-vis partners, children, parents or adult dependent relatives.

In MM (Lebanon), the Supreme Court justices rejected the proposition that the section 55 duty had been taken into account, In particular they held that:

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 any gaps in the rules had not been adequately filled by the instructions. Versatility was 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 v The Netherlands (2015) 60 EHRR 17 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 historic claim in GEN.1.1. about the section 55 duty’s incorporation into the rules was “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.”

The observations of the justices mean that – after HC290 – in considering applications under the new general provisions in paragraphs GEN.3.1. to 3.3. of Appendix FM, decision-makers are required to have regard, as a primary consideration, to the best interests of any child affected by an immigration decision, thereby giving direct effect within Appendix FM to the statutory duty under section 55 of 2009 Act. The wording of paragraph EX.1.(a)(ii) has been changed from “it would not be reasonable to expect the child to leave the UK” to “taking into account their best interests as a primary consideration, it would not be reasonable to expect the child to leave the UK”. Only time will tell whether this is what the Supreme Court had in mind?

As noted above, changes have also been made whereby when the new general provisions in paragraph GEN.3.1. or GEN.3.2. of Appendix FM are in application, an applicant granted entry clearance or leave to remain as a partner or parent will be on a 10-year route to settlement/ILR, with scope to apply later to enter the five-year route where they subsequently meet the relevant requirements. This may appear generous at first sight. But since a decelerated route to settlement of this nature was not something the Supreme Court seemed to have had in mind, further intrigue may arise on this point in future times.

HC290 also ensures that children are granted leave of the same duration and subject to the same conditions as their parent, who is or has been granted leave. Other measures have also been taken to ensure that the partner of a person here with refugee leave or humanitarian protection cannot qualify for settlement/ILR before their sponsor. Some flexibility is achieved by making allowances for recourse to public funds where satisfactory evidence exists that (i) the applicant is destitute as defined in section 95 of the Immigration and Asylum Act 1999 or (ii) that there are particularly compelling reasons relating to the welfare of a child of a parent in receipt of a very low income.

Despite all the gloss, campaigners against the rules are hugely disappointed with the cosmetic changes made by the government to implement MM (Lebanon). Serious concerns remain in that regard. The JCWI excoriated the government of failing “to fix family migration” and doing “the absolute bare minimum to help British people who want to live in the same country as the person they love.” JCWI thinks that the legal points made by the Supreme Court are “a starting point for wholesale reform of the family migration system”. But it instantaneously condemned the home office for trying “to duck the broader questions” in relation to fully aligning the Immigration Rules with the judgment in MM (Lebanon).

Such reactions are predictable because the MIR’s crippling effects have resulted in 15,000 British Skype kids who only get to spend time with their left behind parent on the Internet. In its botched “strong and stable” election bid in June, Theresa May’s weak and wobbly government shamelessly campaigned to further “increase the earnings thresholds for people wishing to sponsor migrants for family visas”.