This was but one of a number of startling submissions made by the Secretary of State to the Court of Appeal earlier this week in Secretary of State  v. MM and Others in defence of her controversial Financial Requirements contained in Appendix FM of the Immigration Rules.

In R (MM and Others) v. Secretary of State [2013] EWHC 1900 (Admin)  Mr Justice Blake found that in generality of cases the Financial Requirements contained in Appendix FM (in particular, the £18,600 minimum income requirement (more if there are children) which must be demonstrated by British citizens, those settled in the UK and those granted refugee or humanitarian leave who wish to sponsor their spouses (and children) to come to the UK) was likely to amount to a disproportionate interference with Article 8 if an applicant was earning above the national minimum wage (£13,400) and could show that the shortfall was made up of (i) savings (including those below £16,000), (ii) credible job offers and (iii) credible offers of third party support.

Blake J granted the Secretary of State permission to appeal in July 2013.  Following his judgment, the Secretary of State placed a stay on consideration of cases where applicants did not meet the financial threshold. Statistics out this week reveal that for the period up to 31.12.13 some 2,628 entry clearance applications and 386 in-country leave applications are on hold pending the appeal to the Court of Appeal. [to view the statistics on the government website, click here]

The appeal was finally heard on 4-5 March 2014 by what appeared to be a sympathetic Court of Appeal (Maurice Kay, Aitkens and Treacy LLJs), the judges taking Monday as a reading day to consider the voluminous materials and jurisprudence relied upon by both parties.  The hearing was attended by many members of the public most of who were directly affected by Appendix FM and who openly baulked at many of the submissions made by the Secretary of State in her defence of the Rules.

In argument the Secretary of State made a series of points.

First, she argued that Blake J had erred in law in substituting his own judgment, in place of the Secretary of State’s, on whether the Rules struck a proportionate balance between the interests of migrants and their sponsors on the one hand and the public interest in protecting welfare benefits and facilitating integration into UK society on the other, a fortiori where the Government had consulted widely on the level of the minimum financial threshold, including commissioning a study from the Migration Advisory Committee (MAC) and against a background of more than the usual level of Parliamentary scrutiny of the Rules.  In the Secretary of State’s view, Blake J had erred in his approach to the level of scrutiny required for the consideration of the Rules since these fell within an area of social and economic policy for which the Strasbourg Court has previously held demands a wide margin of appreciation.

A great deal of the argument in court was devoted to the intensity of review that must be conducted by the courts and the extent to which it was permissible to scrutinise the legitimacy of the government’s aims to determine whether they struck a fair and proportionate balance.  The Court appeared to accept that the financial threshold did amount to an interference with family life.  They were further interested in argument as to whether the Court was entitled to evaluate for itself the “necessity” of the interference with family life and more importantly whether the least intrusive alternatives to meeting the Government’s aims had been properly considered (SS (Nigeria) [2013] EWCA 550 (Civ) at [36] – [42], Quila v. Secretary of State [2011] UKSC 45 per Lord Wilson at [44] – [49]).

The Court also heard submissions on the MAC report, the body which proposed the £18,600 threshold, in particular, that MAC limited itself to consideration of the economic argument, shying away from social, political and legal considerations which it considered were for the Secretary of State.  MAC looked at the position in a number of other countries but did not consider the decision of the Court of Justice of the European Union’s decision in C-578/08 Chakroun v Minister van Buitenlandse Zaken [2010] ECR 1-1839 [2010] 3 CMLR 83 in which the Court considered that for states party to Directive 2003/86/EC, stable and regular resources should be interpreted by reference to the measure of income support levels.  MAC had considered it was not appropriate to take into account housing costs in the calculation of the £18,600 threshold, despite the fact that (unbeknown to it at the time) the Rules would then go on to inconsistently permit third parties to provide housing to migrants and their sponsors; their own evidence suggested that almost one third of applicants lived with family or friends rent free on arrival, a saving even on MAC’s calculation of some £6,000 per annum.  MAC considered that there was no case for taking into account the regional differences in the costs of rental accommodation, despite the fact that rent outside London is significantly cheaper.  Nor did MAC engage with the manner in which such applications must be evidenced.  Indeed, MAC had considered that there was a case for including the earnings of migrants.  These were all decisions reached by the Secretary of State alone.

For those who have read the Parliamentary debates on the new Rules, you will know that during the commons debate in June 2012 the Secretary of State made just one reference to the £18,600 threshold income, with many members of the House of Commons simply unclear what was being debated, on any view, hardly the “imprimatur of democratic approval” envisaged by the Lords in Huang [2007] UKHL 11 at [17].  Since then, the All Party Parliamentary Group, chaired by Baroness Hamwee, has criticised both the threshold and requirements of Appendix FM (for further details click here).  John Vine, the Independent Chief Inspector of Borders and Immigration has found that little and/or inconsistent consideration is given to Article 8 ECHR or the best interests of children in settlement applications made overseas (click here for further information) and both the House of Lords Secondary Legislation Committee (click  here) and the Parliamentary Human Rights Committee has criticised the level of Parliamentary scrutiny to the 9 July 2012 amendments to the Immigration Rules. (to read the letter to Theresa May click here)

In an unreported decision of the Upper Tribunal put before the Court of Appeal, the Tribunal having scrutinised (on the Secretary of State’s appeal) for itself Hansard and other Parliamentary material, found that the £18,600 threshold did not in fact have the “endorsement” that the Secretary of State contended for.  The Secretary of State belatedly sought permission to appeal but her application was refused by the Upper Tribunal (UTJ Grubb) approving the detailed and careful determination as both rational and sustainable: the Secretary of State has since (out of time and on the eve of the first day of this appeal) renewed her application for PTA citing the usual “lack of resources” as the reason for her delay.  Tony Muman represented the Appellant/Respondent before both the FtT and UT.

The Court will need to grapple with this evidence and it is likely to give further guidance on the intensity of review of Government policy in areas touching upon core and fundamental human rights.

Second, the Secretary of State argued that Blake J erred in finding that there was likely to be a disproportionate interference with Article 8 ECHR in the generality of cases where applicant’s could show earnings above the national minimum wage, in combination with other forms of finances (third party support, job offers, savings below £16,000 etc.) since such cases could be considered under the entry clearance instructions to ECOs in the exercise of discretion and the search for exceptional circumstances.

In response, the Court heard that Blake J had properly considered the provisions of the Rules by reference to the Government’s stated aims and found them wanting.  Where applicants are precluded from accessing benefits (see part 6A HC 395 and s. 115 Nationality Immigration and Asylum Act 2002) what was the point in requiring British citizens, those settled in the UK and refugees to leave the country to live with their partners and children for the sole reason that they did not meet the financial requirements, when any shortfall could be made up of a combination of funds from third party support, accepted as a legitimate source of income by the House of Lords in Mahad v. Secretary of State [2009] UKSC 16, job offers available to the migrant following entry or savings below £16,000 which were not held in cash sums held for 6 months?  Such rights touched on common law and fundamental right of British citizens to reside in the UK without let or hindrance.  The Court seemed particularly attentive to such arguments.  The Court was also referred to the excellent evidence from Sonel Mehta, founder of BritCits (to whose members we are also very grateful), a non-governmental organization comprising largely of British citizens, affected by the introduction of Appendix FM, who exhibited a number of entry clearance refusal letters.  Her evidence was that despite their extensive membership and very active website, they had not found a single ECO decision where Article 8 ECHR, the best interests of children or the exercise of discretion had been considered, still less resulted in a grant of entry clearance, chiming with the evidence of John Vine (above).  She cited evidence of the absurdity of decisions from ECOs where sponsors showed a £0.59 pence p/week shortfall in the income threshold being refused with no consideration of the exercise of discretion.  The Court will again need to grapple with this evidence and reach clear views on whether Blake J’s formulation at the five factors [see 124 (i)-(v) of his judgment was a step too far, or amounted to proper scrutiny of the whether less intrusive measures, requiring a Huang compliant assessment of the overall financial position of the sponsors family was in fact appropriate.

Third, the Secretary of State asserted that the best interests of (frequently British) children could be appropriately considered through the guidance issued to ECOs on the search for exceptional circumstances, despite conceding that the Rules had to be framed in a manner which gave proper and primary respect to those interests and against a backdrop of entry clearance decisions showing that no such consideration is given.

Fourth, the Secretary of State sought to uphold Blake J’s finding that the Rules were not discriminatory in effect to certain classes of applicant, in particular, refugees, women and nationals of certain countries (in particular Bangladesh and Pakistan).  The Court heard submissions on the fact that the Secretary of State had not given adequate consideration to the position of female sponsors who earned on average 14.9% less than their male counterparts and were therefore less likely to be able to meet the minimum income threshold, that young people and those living in certain deprived parts of the UK could not hope to reach the level set by the Rules and that refugees who married post-flight frequently suffered from mental ill-health and language difficulties and were unable to earn the levels demanded by the Rules.

In argument, none of the authorities from the Upper Tribunal was cited in support of the propositions relied upon by the Secretary of State.

Those sitting in court over during the hearing witnessed a sustained defence of Rules which have been widely criticized including by those within the Secretary of State’s own party.  The real victims of the Rules are those whose applications have been presently stayed pending this Court’s judgment and those who have been kept apart from loved ones for inordinate amounts of time as a result of falling foul of the Financial Requirements.  None will be comforted by the length of time it will take for the Court of Appeal to deliver their judgment, despite the promise that they would do so in a shorter period of time that it took Mr Justice Blake to do so; our best guess is a result from the Court in 2-3 months prolonging the obvious agony caused to thousands of people affected and separated by these pernicious requirements.  Whatever the outcome, there is more than a distinct possibility that the case will be taken to the Supreme Court.  As Maurice Kay LJ observed at the hearing, whenever the Rules fail to make express reference to Article 8, it is a recipe for litigation.

MM was represented by Manjit S. Gill QC, Tony Muman and Navtej Singh Ahluwalia.

Master AF was represented by Richard Drabble QC, Tony Muman assisted by Ineza Hussain.