Ramby de Mello and Tony Muman act for the Appellant who protests that being compelled to give evidence via video-link from Jamaica is in breach of GDPR instructed by Sanjeev Sharma at JM Wilson Solicitors.
Article by Katie Wilkinson
The Court of Appeal have clarified the powers of the Court to require parties to engage in early dispute resolution which goes much further than the Courts’ general encouragement of mediation, and the imposition of costs sanctions to those who unreasonably refuse.
On 6 August 2019 the Court heard Lomax v Lomax  EWCA Civ 1467 which concerned the effect of CPR 3.1(2)(m), and specifically the Courts’ powers to take case management steps that include hearing an ‘Early Neutral Evaluation’ (‘ENE’) ‘with the aim of helping the parties settle the case’. The issue before the Court in this inheritance dispute was whether such a hearing could be ordered in the absence of consent between the parties.
The decision of the Court of Appeal was a resounding YES. The specific reference to an ‘ENE’ within the CPR came into effect on 1 October 2015. It is not the same process as mediation and falls into the Courts’ general case management powers.
It was noted by LJ Moylan that, although it would have been simple to include the same, the CPR did not contain an express requirement for the parties to consent to the ordering of an ENE. ENE was part of the court process, whereas mediation was not.
An ENE was held to be “a step in the process which can assist with the fair and sensible resolution of cases”.
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.
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 email@example.com, and we look forward to seeing you.
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  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
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 Supreme Court has now given permission to appeal the Court of Appeal’s decision in SSHD v SS (Congo) & Ors  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.
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.
The Court of Appeal has today handed down judgment in which it has allowed the Home Secretary’s appeal against Mr Justice Blake’s decision in MM and others v Secretary of State  EWHC 1900 Admin. The case concerns the Home Secretary’s controversial rules on family migration requiring that British Citizens or partners lawfully settled in the UK must show that they have an income of at least £18,600 p.a. with additional sums for each child before they can sponsor their foreign partners from outside the European Economic Area. The Court of Appeal has held that the requirements are lawful. The court reached this conclusion essentially on the basis that it was not for the court to analyse the basis of the Secretary of State’s decision to introduce such requirements into the immigration rules which are merely statements of administrative policy.
The test adopted by the court is the same as that which it adopted in Bibi  EWCA Civ 322 (the case concerning the English language requirement), namely that it is enough that the Secretary of State should have a ‘rational belief’ that the policy embodied in the requirements will achieve the identified aim. This is an extremely restrained form of judicial review and suggests a lack of willingness to interfere with governmental decisions. This test seems to conflict with the approach adopted by the Supreme Court in cases such as Baiai  UKHL 53 and Quila  UKSC 45 where the court adopted a rigorous analysis in assessing the evidence and used a test requiring the Secretary of State to show an objective justification. The Supreme Court has already granted permission to appeal in Bibi on arguments which include the argument that the test of a mere rational belief is wrong. It is likely that the present case will also proceed to the Supreme Court on an expedited basis. Whereas Mr Justice Blake’s decision had properly considered the detailed evidence provided by the claimants’ lawyers, the Court of Appeal barely considered it. The decision comes over four months after the appeals were heard in March 2014 and two years after the rules were introduced.
Since Mr Justice Blake’s decision, the Secretary of State has imposed a stay on considering applications which would otherwise have been refused for failure to satisfy the new rules. That stay will no doubt now be lifted. This will at least give people an opportunity to mount an appeal against negative decisions. In the meantime, a great many families who are never likely to be a burden on the state will have been kept apart. Applicants may however still succeed under Article 8 of the European Convention of Human Rights even if they cannot satisfy the minimum income requirements under the rules. The Court of Appeal rejected the suggestion in Nagre  EWHC 720 Admin that, if the rules cannot be satisfied, the applicant will need to show an arguable case before the decision-maker can move onto considering Article 8.
The Court of Appeal did not treat the rules on minimum income requirements as constituting a complete code for Article 8 purposes such that there was no need to consider Article 8 separately. Indeed, that was not the Secretary of State’s position. The Court of Appeal also noted the Guidance which had initially been produced in a draft form (only on the fourth day of the hearing before Mr Justice Blake) and the Guidance which had then been promulgated in final form after that hearing. That final Guidance directs caseworkers first to consider applications under the rules and, if the applicant does not meet the requirement of the rules, to move onto a second stage. Under that second stage caseworkers are required to consider “whether, based on an overall consideration of the facts of the case, there are exceptional circumstances which mean refusal of the application would result in unjustifiably harsh consequences for the individual or their family such that refusal would not be proportionate under Article 8. If there are such exceptional circumstances, leave outside the rules should be granted, if not, the application should be refused”.
The Court of Appeal has ruled that where the relevant group of immigration rules does not constitute a “complete code” then the proportionality test will be more at large, albeit guided by the Huang tests and UK and Strasbourg case law (see paragraph 134). In other words, unlike rules relating to the deportation of criminals, the application of Article 8 to cases which fail to satisfy the minimum income requirements will have to be carried out in any event in accordance with a straightforward Article 8 assessment. This is why the Court of Appeal goes on to say at paragraph 160 that if, as is suggested in the claimants’ evidence, decision makers have not been applying their minds to whether a “proportionality” test has to be used when considering “exceptional circumstances” in individual cases, the remedy lies in pursuing individual appeals and requiring decision-makers to apply the Huang and normal Article 8 tests. There is no other arguability or exceptionality standard. Therefore, it would seem that, much of Mr Justice Blake’s general comments as to proportionality will in any event be relevant to individual decisions, even if the rules are formally not unlawful.
So all is not lost just yet. The rules have forced significant numbers of British people to go and live in Europe for a reasonable period for time, in exercise of their rights as EU Citizens, before they lawfully come back months later with their spouses under EU law. In other cases, the rules have forced such persons out of the United Kingdom and out of Europe altogether, even though they are British or have been lawfully settled in the UK for many years. The impact on young people, part-time workers and women, particularly those from a racial minority background, who are more likely to be in low-paid jobs, has been particularly severe. The income threshold rules have received criticism from other quarters too. In June 2013, the All-Party Parliamentary Group on Migration issued a report which concluded that the rules were disproportionate. http://www.appgmigration.org.uk/family-inquiry. After the Court of Appeal’s ruling, all factors going to the harshness of the rules will have to be assessed in the context of Article 8 in individual cases.
Tony Muman is instructed on behalf of the First Respondent and the Interested Party and Joseph Neville is instructed on behalf of the Interested Party in this case. To instruct any member of our Immigration & Public Law team please contact the clerks.