Court of Appeal: Guidance on Entry Clearance and MIR

Secretary of State for the Home Department v MS (Pakistan) [2018] EWCA Civ 1776 (27 July 2018)

The Supreme Court’s ruling in MM (Lebanon) [2017] UKSC 10 permitted the operation of the Minimum Income Requirement (MIR) for partners in Appendix FM and Appendix FM-SE of the Immigration Rules. But clearly, the Justices still disapproved of the rigid manner in which the MIR had been erected by the government and they found that fairness requires an assessment regarding whether the state would be burdened where the MIR is unmet. At first instance, Blake J held in MM (Lebanon) [2013] EWHC 1900 (Admin) that the MIR was so onerous on applicants that it constituted an unjustified and disproportionate interference with the right to respect for family life and therefore fell outside the margin of appreciation afforded to the executive. In these proceedings, on the governments’s appeal, the Court of Appeal held in light of MM (Lebanon) [2014] EWCA Civ 985, which reversed MM (Lebanon) [2013] EWHC 1900 (Admin), that the Upper Tribunal had erred in law by overturning refusals by entry clearance officers to grant the respondents leave to enter the UK on the ground that their spouses did not satisfy the MIR. McCombe LJ was surprised that premature applications for entry clearance were made and litigated rather than fresh applications being made in order to save time and money. Therefore, it is much better to be safe than sorry and submit a properly prepared fresh application than pursuing an expensive and pointless appeal if it will fail.

A Pakistani national, MS married B, a British national, in November 2012 in Pakistan. Earlier in August 2012, she found employment but had no other employment in the 12 months immediately before MS’s application for leave to enter as a spouse made in December 2012 which was refused for not satisfying the MIR. The FTT held in February 2014 that the basic £18,600 threshold was not met for 12 months prior to the ECO’s decision. However, payslips for the four months which she had been able to supply, relating to the four months preceding the application, equated to annual income between £16,460 and £22,000. Following Blake J’s approach and considering the full facts, the FTT determined that MS’s appeal should be allowed because refusing entry clearance amounted to an unjustified interference with article 8 of the ECHR. The UT dismissed the SSHD’s appeal and held that the FTT was right to apply Blake J’s approach because the family’s income was above the guideline figure of £13,400 proposed by him. In the conjoined appeal, TD and her son, X, were of Jamaican nationality. TD married G, a British citizen of Jamaican origin, in Jamaica in 2012.

Entry clearance applications for TD and X were refused for failing the MIR because a gross income of £22,400, or £18,600 (basic) + £3,800 for the first dependent child X, was not established by supporting documentation to demonstrate G’s income as a self-employed plasterer and as a soldier in the Army reserves. The ECO also thought that G and TD were not in a genuine relationship. However, the FTT did not doubt the genuineness of their relationship. Evidence of income of £16,659 in 2012 and of £35,857 in 2013 was provided to the FTT but for the ECO the relevant income was the figure up to the time of his decision.

The FTT found that G had sufficient income to be able to look after his family and to secure accommodation for them. His income was adequate at well over the required threshold. It also applied section 55 of the Borders, Citizenship and Immigration Act 2009 to hold that X’s best interests were served by being with G and TD because the child had never know his real father. The FTT held that the ECO had not engaged properly with the fact that G was a reservist awaiting deployment in Afghanistan, was supported by his regiment and his deployment had only been delayed because he had not “sorted out the status of his wife and children”. The UT dismissed the ECO’s appeal against the FTT’s decision.

The Court of Appeal

Upon further appeal, Kitchin, McCombe and Lindblom LJJ held that the UT had been wrong to overturn the refusals by both ECOs whose appeals were allowed on the basis of the decision in MM (Lebanon) [2014] EWCA Civ 985. Blake J’s decision had been rightly reversed by Maurice Kay, Aikens and Treacy LJJ after which a panel of seven Justices presided over by Lady Hale held that the MIR pursues a legitimate aim. Any interference with article 8 rights caused by the MIR is justified because it ensures that a family has sufficient resources without needing to have recourse to welfare benefits. Overall, it could not be said that a lower income threshold should have been adopted and the hardship caused did not make the MIR incompatible with the ECHR or unlawful at common law. Failing to meet the MIR did not automatically cause an application to fail because the decision-maker had a discretion to grant entry clearance outside the rules.

The crux of both appeals centred upon what all the parties agreed was (with hindsight) the misplaced reliance in Blake J’s judgment by the FTT judges who had rightly followed that outcome as the state of the law as it stood at that time and it dictated the judges’ approach to the entire proportionality exercise.

In these cases, McCombe LJ found it “very unsafe to second guess” what the FTT would have done in light of the Supreme Court’s interpretation of the law in the SS (Congo) case which was conjoined to the final MM (Lebanon) decision (discussed here). The same was true in relation to Agyarko [2017] UKSC 11 (discussed here). McCombe LJ held that:

44. In my judgment, the decisions of the Tribunals in these cases involved errors of law, of which those Tribunals were understandably unaware, and that those errors were clearly highly material to those decisions. I would, therefore, allow these appeals and would remit both cases to the UT for consideration afresh.

Rather than the FTT, the UT was the right forum given the complex history of the cases and the materially new understanding of the law emerging from the critical decisions in the Supreme Court.

The Court of Appeal found it surprising that after the initial refusals these respondents failed to submit fresh applications for entry clearance when it became clear that both applications had been premature and that very shortly thereafter the MIR would have been satisfied. The court held, per curiam, that had fresh applications been made, “a good deal of cost, delay and uncertainty might have been avoided” and the present appeals might have been unnecessary.

Comment

It is hard to disagree with the Court of Appeal’s logic that a lot of time and money would have been saved had fresh applications been made. So perhaps it is best to take the free advice imparted by Kitchin, McCombe and Lindblom LJJ and be safe by making a fresh application rather than be sorry by waiting for an eternity until your case is resolved. This is especially true with entry clearance cases because the partners in question are separated for lengthy periods of time. Indeed, it is equally true that even after the Supreme Court’s judgment in MM (Lebanon) – which was delivered in February 2017 – the Home Office and the FTT and UT are still behaving as if the MIR must be met in each and every way that it was initially implemented more than six years ago.

For example, I have come across numerous cases where families were victimised by the MIR despite the fact that Appendix FM Section 1.0b, family life (as a partner or parent) and private life: 10-year routes requires decision-makers to grant leave to remain on a 10-year route to settlement. Recently, I went to Manchester twice (the first time there was no interpreter, the fire alarm went off too) for a spouse visa appeal where the sponsor owned a mortgage free house and had £40,000 in cash savings and drove a lorry on the weekend earning £12,000. When I asked the sponsor what he would do if his wife, who entered as a partner under Appendix FM, were removed to Thailand he said: “I would commit suicide”.

The judge was happy to allow the appeal on the 5-year route to settlement. But it is better to be safe than sorry because self-representing appellants would find it difficult to know enough about the law to convince a judge that they can satisfy the MIR. From what I can see, irrespective of the Supreme Court’s judgment in MM (Lebanon) and the changes made to the rules, a lot of decision-makers, HOPOs and judges are still insisting on the MIR being satisfied mechanically before a person can be granted leave to remain under Appendix FM. It is also true that people’s spouse and partner relationships are also under attack by decision-makers and judges because of their “precarious” immigration status. However, it is also reassuring to learn that that some lucky people who applied for settlement visas while in the UK on a visit are being granted leave because their children are British and it makes no sense to make them leave the UK to seek entry clearance.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Appeals, Appendix FM, Blake J, Children, Court of Appeal, ECHR, Entry Clearance, Immigration Rules, MIR, Precariousness, Proportionality, Spouse visa, Spouses, Tribunals, UKSC and tagged , , , , , , . Bookmark the permalink.

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