Immigration analysis: The Supreme Court’s decision on the minimum income requirement (MIR)

Immigration analysis: The Supreme Court’s decision on the minimum income requirement (MIR) for partners of non-European Economic Area (EEA) nationals seeking leave to enter is considered by Tony Muman, barrister, at 43 Temple Row Chambers.

Do you earn enough—Article 8, section 55 and the minimum income requirement (R (on the application of MM (Lebanon)) v Secretary of State for the Home Department and other cases)

An informal event designed for conversation and networking, rather than a formal lecture, attendees will be provided with a written delegate pack containing Tony’s views on the judgment and how to use it to help your clients. There will be refreshments, and an opportunity to network with other Midlands immigration professionals.

The event will be held on Wednesday 8 March 2017 at 5.30pm. The event is completely free of charge, and the City Centre venue will be confirmed shortly.

Please indicate whether you can attend by emailing the clerk’s at clerks@43templerow.co.uk, and we look forward to seeing you.

A Barrister’s tips for giving evidence in the Family Court

Following, Jonathan Bott’s successful lecture at Community Care Live in Birmingham last year, he has recently provided an article for Community Care Inform, the online resource for social work professionals entitled ‘A barristers tips for giving evidence in family cases’. The article is designed to assist social workers when giving evidence and a copy can be accessed here.

This article was published on Community Care Inform – an online resource for social work professionals, which provides guidance and tools, research and legal information to enable robust evidence-based practice and decision-making. © Community Care Inform, 2016.

24 Jan 2017: Supreme Court refuses Government’s Article 50 Appeal.

The Supreme Court has dismissed the Government’s Appeal in R (on the application of Miller), AB Parties v Secretary of State for Exiting the European Union.

In what has been described as one of the most important constitutional cases for generations, Mr Tony Muman with the assistance of Mr Thomas Green, both of 43 Temple Row Chambers, represented the AB parties in this judicial review to determine the need for Parliamentary authority to give notice of withdrawal from the EU under Article 50(1) of the Treaty of the European Union.

The Supreme Court held that the Government cannot exercise prerogative powers to give notice pursuant to Article 50 without primary legislation been enacted by parliament. Fundamentally, the Court held that it is only Parliament that can pass laws which interfere with the rights of individuals which have been enshrined in law by Parliament.

The Government will now have to introduce legislation to be laid before Parliament. It is for Parliament, in light of the arguments made on behalf of the AB parties, to consider to what extent to protect the fundamental rights of EEA nationals and other residents in the UK before Article 50 is Triggered.

A copy of the Judgment can be viewed here and a copy of the Press Summary can be viewed here.

Tony Muman instructed by Mr. Byndloss as Supreme Court grants Permission to Appeal against ‘Deport First Appeal Later’ provision.

Supreme Court grants Permission to Appeal against ‘Deport First Appeal Later’ provision

The Supreme Court (Lords Kerr, Reed and Toulson) has today granted permission to appeal in R (Byndloss) v Secretary of State for the Home Department [2015] EWCA Civ 1020. The Court of Appeal judgment is at http://www.bailii.org/ew/cases/EWCA/Civ/2015/1020.html

The appeal concerns the correct interpretation of the new ‘deport first, appeal later’ rules under section 94B of the Nationality, Immigration and Asylum Act 2002.

Section 94B gives the Secretary of State the power to certify the human rights claim of a person liable to deportation where she considers that to do so would not be unlawful under section 6 of the Human Rights Act 1998 (public body not to act contrary to the European Convention on Human Rights). The effect of such a certification is that any appeal must be brought from outside the United Kingdom.

Section 94B affects persons whose deportation is said by the Secretary of State to be conducive to the public good. It is part of the overall drive to move appeal rights out of country; an approach expanded in the current Immigration Bill, to other human rights appeals.

The Home Secretary, during the second reading of the Bill, said ‘The 2014 Act shows that “deport first, appeal later” works when foreign criminals make human rights claims. Our manifesto committed us to extending that to all human rights claims. The Bill will now deliver on that commitment, allowing us to remove people with no right to be in the UK before they can appeal, provided that does not breach their human rights or cause serious irreversible harm.’

Mr Byndloss has eight children in the UK. Having had Indefinite Leave to Remain he is liable to deportation.  The Secretary of State certified his human rights claims, focusing initially only on the question of whether removal pending an appeal would cause ‘serious and irreversible harm’.

Those who have been dealing with such cases since section 94B came into force will be familiar with the ‘serious and irreversible test’. Home Office caseworkers have routinely been interpreting the legislation and guidance to remove would-be appellants where it was considered that removal would not breach article 3 ECHR, whilst effectively ignoring article 8 ECHR.

At the Court of Appeal, the Secretary of State conceded that that interpretation of the legislation is wrong. The Court confirmed that ‘Even if the Secretary of State is satisfied that removal pending determination of an appeal would not give rise to a real risk of serious irreversible harm, that is not a sufficient basis for certification.  She cannot certify in any case unless she considers…that removal pending determination of any appeal would not be unlawful under section 6 of the Human Rights Act.’ 

This was markedly different to the approach taken in the Secretary of State’s guidance to caseworkers to date. The Court of Appeal declared that her guidance on section 94B is ‘inaccurate and misleading in focusing as it does on the criterion of serious irreversible harm’ and will now have to be rewritten.

Despite this important ruling on the guidance, Mr Byndloss challenges the certification based on arguments as to procedural protections and the best interests of his children were either rejected on the facts or not confronted by the court, leading his judicial review claim to fail. In the meantime, a stay on his deportation has been granted.

Tony Muman is instructed for Mr Byndloss.

For all enquiries please contact the clerks.

43 Temple Row Barristers Appear in the Supreme Court to Challenge Minimum Income Visa Rules

43 Temple Row Barristers Appear in the Supreme Court to Challenge Minimum Income Visa Rules

 

Thursday 25 February 2016

Over the course of a three day hearing between 22-24 February 2016, a seven judge bench of the Supreme Court has considered the linked appeals in MM (Lebanon) and others v. Secretary of State for the Home Department and SS (Congo) v. Entry Clearance Officer, Nairobi.  A write up of the Court of Appeal’s judgment can be found here and the High Court here.

The appeals concerned the Home Office Minimum Income Rules which require a British citizen, a lawfully settled person or a refugee in the UK, to be earning an income of at least £18,600 per annum, rising to £22,400 with the first child and increasing by £2,400 per child thereafter, before being allowed to sponsor a non-EU national partner or spouse.  In order to demonstrate the £18,600 the Rules prevent the sponsor from relying on savings less than £16,000 or on promises of third party support or an offer of employment that the incoming spouse or partner may have secured.

It was argued that the £18,600 requirement was grossly excessive and unobtainable for the majority of the working population particularly given the restrictions on how it could be met.  Furthermore, the Appellants argued that the Minimum Income Rules disproportionally impacted those in low-income occupations, refugees, women and certain ethnic groups.  The Appellants submitted that the rules were inconsistent with the States’ statutory duty to have regard to the best interests of children and were incompatible with Article 8 of the European Convention on Human Rights (the right to respect for private and family life) and Article 14 (prohibition of discrimination) and that the rules set out by the Secretary of State amounted to significant breaches of individual’s rights which would in many cases last a lifetime.  The Home Office guidance on when to apply discretion in the favour of an applicant who did not meet the Minimum Income Rules was in itself unlawful because it imposed a series of thresholds and tests of exceptionality before it could be considered.

Both MM and SS are refugees.  Master AF is the nephew of MM, although they have a special father/son relationship.  Neither MM or SS are able to return to their home countries to enjoy a family life with their spouses because of a continuing risk to them there.  They argued in part that the Immigration Rules fail to draw this obvious and very important distinction between them and those who are able to enjoy family life elsewhere.  They also pointed out that the Minimum Income Rules were forcing British citizen sponsors out of the UK solely in order to live with their family members whose admission was otherwise barred as a result of not earning the required amounts.

The Supreme Court has reserved its decision and judgment is expected in a number of months.

Tony Muman appeared for the Appellants MM, Master AF and SS

Joseph Neville appeared with Mr Muman for the Appellants Master AF and SS

The pre-entry English requirement for partners and article 8

Tony Muman recently wrote an article for LexisNexis following the outcome of the Bibi case at the Supreme Court which can be viewed by clicking on the link below.

To instruct Tony Muman on any public law or immigration matter, please contact his clerks.

The pre-entry English requirement for partners and article 8

Supreme Court rules on pre-entry English language tests

43templerow

Supreme Court rules on pre-entry English language tests

On 18 November 2015 the Supreme Court handed down judgment in R (on the applications of Ali and Bibi) v Secretary of State for the Home Department [2015] UKSC 59. The cases concerned a challenge to the introduction in 2010 of an Immigration Rule. The Rule imposed a requirement that spouses or partners from certain non-EEA countries who wish to marry British Citizens or persons settled in the UK should first learn a certain level of English, and pass a test, before they join their spouses or partners in the United Kingdom.

In a long awaited decision the Supreme Court has not yet finally concluded what the result ought to be. The Supreme Court has decided to invite further submissions on whether it would be appropriate to give declaratory relief on how the Rule ought to be applied to reflect the Court’s concerns which are set out in the judgment.

Through-out the litigation, which started in 2010 in the Administrative Court, the appellants had alleged that the Rule was contrary to the right to respect for family life in the European Convention of Human Rights (Article 8). Although the Rule contains the possibility of an exemption in exceptional circumstances, the appellants had also made submissions at each stage of the litigation that the Secretary of State’s interpretation of ‘exceptional circumstances’, as set out in Home Office Guidance, was too narrow and showed that the Rule would be applied unlawfully in contravention of Article 8. The judicial review claims were dismissed by the High Court and by the Court of Appeal by a 2-1 majority decision.

In the Supreme Court, Lady Hale gave the first judgment, with which Lord Wilson agreed. She said that she would refuse the remedy of striking down the Rule or declaring it invalid because, as framed, it was capable of being applied compatibly with Article 8. But she went on to say that the operation of the Rule, in the light of the Guidance, was likely to be incompatible with Convention rights in a significant number of cases. She concluded that there was likely to be some benefit, both to individuals and to those administering the Rule, in declaring that the application of the Rule would be incompatible with Convention rights in certain types of cases such as where it would be impracticable without incurring unreasonable expense for a foreign spouse or partner to gain access to the necessary tuition or to take the test. Lord Hodge and Lord Hughes also recognised that the Guidance ought to be amended because it would lead in a number of cases to a breach of Article 8.

Lord Neuberger said that he saw considerable attraction in granting declaratory relief to reflect the concerns that the whole Court had about the application of the Guidance. He said that this was an important and sensitive topic, and it would be unfortunate if there was no formal record of the Supreme Court’s concerns. A final decision will however be made after considering further submissions from the parties. The appellants have therefore filed written submissions formally seeking declaratory relief in relation to the Guidance. The Secretary of State for the Home Department has yet to respond.

Whether or not the Court ultimately makes a declaration, the judgment already contains several important judicial statements, such as statements about the substantial interference that will be caused to family life in many cases, the limited value of a pre-entry language requirement in promoting integration, and the inadequacies of the Guidance. These statements should mean that, although the Rule itself has not been declared unlawful, more applications for entry clearance and appeals against refusals should now succeed on Article 8 grounds where the pre-entry English requirement has not been satisfied. The Secretary of State will also have to issue new and modified Guidance which properly reflects the court’s concerns.

 

The first appellant (Bibi) was represented by Manjit Singh Gill QC and Tony Muman, instructed by J M Wilson Solicitors.

The second appellant (Ali) was represented by Ramby De Mello and Abid Mahmood, instructed by Fountain Solicitors.

 

The judgment is available at

 

https://www.supremecourt.uk/cases/docs/uksc-2013-0266-judgment.pdf

Preparation for RTA Trials

  1. Accuracy of Pleadings:
    • Parties should be careful to accurately state the circumstances of the accident in the Particulars of Claim or Defence.
    • Witness Statements should be cross checked with the Pleadings once they have been finalised. If there are inconsistencies, an amendment to the Pleadings should be drafted and agreed with the opposition.  In the event of there being no agreement, an application to the Court should be considered.
  1. Witnesses to the Collision:
    • Witness statements should be taken from any adult inside the vehicle at the time of the collision.
    • Witnesses should not be excluded from the proceedings on the basis that they are a spouse/other family member. The Court will consider the evidence of family members and will not consider that witnesses lack credibility just because they are related.
    • The more witnesses available, the stronger the case will generally be at trial.
  1. Memorandum of Understanding:
    • Insurers should refrain from entering into a MOU as an alternative to the opposition bringing a counterclaim. If there is an MOU, the Court simply needs to be satisfied that the party making the claim has discharged the burden of doing so – this gives the Defendant a tactical advantage.  If there is a counterclaim, the Court will have to choose between the competing versions of events as both parties bear equal burdens of proving their case.
  1. Credit Hire:
    • Should a credit hire claim be included, it is not advisable for the Claimant to tender their own spot hire rates in circumstances where the Defendant does not intend to rely on their own. The Defendant bears the burden of establishing lower rates and, often, the Claimant is doing the work which allows the Court to justify a lower award.

Katie Wilkinson

Supreme Court give permission in landmark human rights case

The Supreme Court has now given permission to appeal the Court of Appeal’s decision in SSHD v SS (Congo) & Ors [2015] EWCA Civ 387. The court has directed that the appeal be heard on 22nd – 24th February 2016, alongside the case of MM (Lebanon).

The two cases deal with the government’s new Minimum Income Rules, which impose a minimum £18,600 income requirement before a non-EEA foreigner may join his or her partner in the UK. If the couple have a dependent child, this amount rises to £22,400, and increases further for every subsequent child. The income of the foreign partner on arrival in the UK is not taken into account, nor is any third party support, free accommodation, or savings the couple might have below the figure of £16,000.

Almost half the UK adult population do not meet these requirements, which are the highest in the world in relative terms, and the second highest in absolute terms. The impact on women, ethnic minorities, and those living in deprived areas is even worse, with a majority being deemed too poor to bring their foreign partner to the UK.

Because of the rules over 15,000 children, the vast majority British, are now living in enforced separation from one of their parents in what the Children’s Commissioner calls ‘Skype families‘. The Office for the Children’s Commissioner says:

“The Government is under a legal obligation to treat the best interests of children as a primary consideration when implementing rules and policies. The current family migration rules fall woefully short of this and children’s best interests are often reduced to a mere exception.
“In an ongoing attempt to reduce migration the Government has introduced rules which are now adversely impacting on British citizen families and children. This must surely be an unintended consequence but one that must now be urgently addressed.
“The result has been the separation of parents and children, heartache and misery. Some families cannot see how they can ever meet the rules and separation may be permanent.
The paper quotes testimony from parents, such as this mother of an 11 year old boy:
I recently had to go to his school because he went through a period of anger … I understand he’s coming up to teenage years, but… he had a few anger issues and [talked] about wanting to smash things and not really hurting himself but wanting to break and smash stuff. He did also mention not wanting to live any more and he did go through a period of “why am I even bothering any more?” The doctor talked about the situation and asked him why he thought he was having those feelings and he said to her, “it’s because of my dad, because I can’t see my dad”. The doctor says we need to give him the tools to cope with his feelings as she knows we can’t fix it.”

There are countless more tens of thousands of British and UK settled residents kept apart from their partners due to their financial circumstances.

The case of MM deals with whether the rules are so harsh that they represent an inherently disproportionate interference in the right to a family life under Article 8 ECHR, or alternatively that they are lawful because the Secretary of State or a tribunal can allow cases on a discretionary basis even where the rules are not met. The case of SS looks at the width of that second stage – Theresa May arguing that consequences such as those identified above by the Children’s Commissioner are simply not good enough to qualify as an exception.

The Minimum Income Rules are the linchpin of the government’s immigration policy. The decision of the Supreme Court is likely to be the most significant human rights cases it has decided in years: in legal terms the extent to which government policy can determine the outcome of assessments of proportionality in Article 8, and in human terms by the tens of thousands of people’s lives it will affect.

43templerow’s barristers Tony Muman and Joseph Neville represent MM, AF and SS, and a number of test cases linked to the appeals presently stayed at the Court of Appeal awaiting the outcome of the Supreme Court judgments.

R (on the Application of SS Congo) v Secretary of State for Home Department

Notice has been received today that permission to Appeal in this case has been granted. The Appeal will be heard with R (on the Application of MM Lebanon) in February 2016.

Tony Muman and Joseph Neville are instructed in these cases.

Costs in the First Tier Tribunal (Property Chamber)

 

Following a recommendation in the Report of the Costs Review Group to the Senior President of the Tribunal in December 2011, costs in the First Tier Tribunal (Property Chamber) can now be awarded in the following circumstances:

  • Where wasted costs have been incurred; or
  • Where costs have been incurred by one party where a person has acted unreasonably in bringing, defending, or conducting proceedings; or
  • In a land registration case.

Jurisdiction is conferred on the Tribunal pursuant section 29(4) of the Tribunal Courts and Enforcement Act 2007 which reads:

Costs or expenses

(1) The costs of and incidental to—

(a) all proceedings in the First-tier Tribunal, and

(b) all proceedings in the Upper Tribunal,

shall be in the discretion of the Tribunal in which the proceedings take place.

(2)The relevant Tribunal shall have full power to determine by whom and to what extent the costs are to be paid.

(3) Subsections (1) and (2) have effect subject to Tribunal Procedure Rules.

(4) In any proceedings mentioned in subsection (1), the relevant Tribunal may—

(a) disallow, or

(b) (as the case may be) order the legal or other representative concerned to meet, the whole of any wasted costs or such part of them as may be determined in accordance with Tribunal Procedure Rules.

(5) In subsection (4) “wasted costs” means any costs incurred by a party—

(a) as a result of any improper, unreasonable or negligent act or omission on the part of any legal or other representative or any employee of such a representative, or

(b) which, in the light of any such act or omission occurring after they were incurred, the relevant Tribunal considers it is unreasonable to expect that party to pay.

(6) In this section “legal or other representative”, in relation to a party to proceedings, means any person exercising a right of audience or right to conduct the proceedings on his behalf.

(7) In the application of this section in relation to Scotland, any reference in this section to costs is to be read as a reference to expenses.”

Pursuant to this provision, Rule 13 of The Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 now applies to unreasonable conduct arguments in proceedings in agricultural land and drainage cases, residential property cases, and leasehold cases.

If awarded to a party, costs can be summarily assessed by the Tribunal, awarded in an agreed sum, or made subject to detailed assessment.

Applicants and Respondents in the Tribunal should therefore ensure compliance with Orders and Directions, and avoid last minute applications, or risk defending a costs application on the basis of unreasonable conduct.

Katie Wilkinson