Can a civil injunction stop me protesting?

Article by Tony Muman and Naomh Gibson

The United Kingdom has a proud history of protest movements, from the Suffragette marches of the early 1900’s, to the Northern Irish civil rights movement in the 1960’s, to the more recent anti-Iraq war protests in 2003 and last year’s People’s Vote march. Whether in protest against a rogue State (or a visiting President) or against unethical practices employed by private companies, the individual or collective right to hold actors to account through lawful protest is one of the most fundamental rights that we hold dear in a democratic society, and rightly should be cherished.

Everyone’s human right to protest is protected by the European Convention of Human Rights: freedom of thought, conscience and religion (Article 9), freedom of expression and speech (Article 10), and peaceful assembly and freedom of association (Article 11), often referred to as ‘Convention rights’. Our Human Rights Act 1998 enshrines in UK law most Convention rights and makes it unlawful for the government or any public authority to act contrary to them unless it can be proved that the interference is lawful. This often requires considering whether the interference was both necessary and proportionate, and balancing that need against the conduct of the protesting parties.

In what has been dubbed ‘the Birmingham School case’, useful guidance has given by the High Court on how this balancing act plays out for both named and unidentified protestors (also referred to as ‘Persons Unknown’). This article summarises the key principles in respect of both. The case received international coverage, some of which can be found here.

The defendants in this case were represented by the Halcyon Public Law team, who are experts in civil injunctions.

Ramby de Mello and Tony Muman acted for the First to Third Defendants, with the assistance of Muhammad Ul-Haq. Paul Diamond and Thomas Green acted for the Fifth Defendant.

If you are concerned about restrictions on your ability to lawfully protest, or would like further information about this case, please contact the Clerks.

‘The Birmingham School case’

In November 2019, the High Court heard over a five-day trial a test case for civil injunctions to restrict street protests and to prohibit online abuse of teachers at Anderton Park Infant and Junior School in Birmingham. Many of the protestors were parents who were opposed to the School’s decision to educate its pupils, their children, on “LGBT issues”. The School is maintained by the claimant local authority, Birmingham City Council, who applied for the injunctions against the five defendants.

A civil injunction may be granted where the Court is satisfied that an individual has engaged in, or threatens to engage in, conduct capable of causing nuisance and annoyance. If an injunction is granted, engaging in the behaviour prohibited by the injunction can result in the person restrained receiving a fine or at worst, a prison sentence for contempt of court. Before an injunction is made final, an interim injunction will usually be imposed before the final trial of the application is heard where there is a sufficiently real and imminent risk of misconduct before the final trial.

The local authority first brought the claim against four named defendants. Defendants 1-3 could be identified and were characterised in the claim as being the “ring-leaders” of the street protests. They each belonged to the Muslim faith and were opposed to what they saw as the School’s agenda on the basis that it amounted to unlawful discrimination on grounds of ethnicity and/or religion, contrary to the Equality Act 2010, and was a failure to comply with the requirement in the Education Act 1996 to have regard to parental wishes, in that there was a lack of any proper consultation. The second defendant had two children at the School and was concerned about what they were being taught, she said without her consent or consultation, and how the teaching of LGBT might cause confusion for her children given the direct conflict with the family’s religious beliefs.

The fourth defendant to the claim was named as “Persons Unknown”, the scope of which referred to any other protestor not specifically named (i.e. the whole world) with the ultimate intention of preventing anyone else from taking part in protests organised by the first to third defendants within the exclusion zone in ways that would be prohibited.

The fifth defendant was an online Christian activist who later asked to be joined to the proceedings to represent why the claimant’s proposed curtailment on freedom of speech using social media was unlawful and conflicted with his own religious beliefs.

Before the trial, Warby J heard submissions on whether the interim injunctions should continue against each of the named protestors and “Persons Unknown”. He concluded that the defendants’ application for discharge of the existing injunctions should be granted, on the grounds of the local authority’s failures to comply with the duty of full and frank disclosure owed by those who seek injunctions without giving notice to other parties. But he did agree on the local authority’s application to issue fresh interim injunctions against the defendants so that protection remained in place pending trial.

The first judgment dated 26 November 2019 can be read in full here.

Named Protestors>

The claimant made several allegations against each of the first three defendants about the way in which the regular protests outside the School amounted to nuisance and disruption, and how the online abuse of teachers on social media was unacceptable. Through the injunction the claimant sought to restrict the way in which the protests were carried on, including where the protests could take place identifying an exclusion zone around the School which defendants 1-3 were not permitted to enter, except for certain reasons. The injunction was not about restricting what the defendants could say or the subject matter of the protest.

Having heard the evidence Warby J found the allegations against the first three defendants proven and ordered that the interim injunctions against each of the three be made final. In summary, he found that that council had the relevant powers to bring the claim for an injunction, that its reasons for doing do were legitimate and lawful and did not amount to discriminatory treatment contrary to the Equality Act 2010, and that the first three defendants were responsible for the most extreme manifestations of the way in which the protests were carried out. He concluded that the restrictions sought by the council in the injunctions would have the effect of preventing the repeat of the unlawful behaviour and therefore would be a permissible interference with the defendants’ Convention Rights.

In the case of the first defendant, the sole excepted purpose is to enter a specified mosque, from a specified road. The injunction against the second defendant contains the same exception, and two more: taking her children to the School, or collecting them, or for any pre-arranged meeting at the School. In addition to a restriction on entering the exclusion zone, the defendants are ordered not to organise, engage in, or encourage any other person to engage in any protest against teaching at the School within the zone, including by distributing leaflets, and restrained from approaching, contacting or attempt to contacting any member of staff of the School, or any person who supports the local authority’s case.

An application for permission to appeal to the Court of Appeal is pending.

What about social media?

The claimant also sought to injunct the use of social media to offend or ‘abuse’ teachers. The local authority’s case was there was unacceptable abuse of teachers on social media via a closed WhatsApp parent’s group and the first defendant’s Twitter account. At trial it became apparent that the local authority and the teachers only came to know of the WhatsApp group through “leaks” from one or more group members.

The Court did not continue the injunction restraining abusive statements on social media and made no injunction against Mr Allman (the fifth defendant), who succeeded in resisting the imposition of any further restriction on his freedom of speech as an online blogger.  The learned Judge ruled that the local authority had failed to present a sufficiently compelling case that there was a pressing social need for a restriction on what was said via social media.

Whilst dealing comprehensively with the conduct of the named protestors, the judgment left open the more difficult question as to who should be included within the definition of “Persons Unknown”, and, if they could be made subject to an injunction, what sort of restrictions could be imposed on such individuals.

This novel attempt to restrain what is said via social media on the internet was a daunting challenge for the claimant local authority, which in the end, rightly, failed. Such applications raise complex points of law, including questions of jurisdiction, which despite being raised in this case for the first time remain unanswered.

Persons Unknown

At the interim hearing before trial, Warby J expressed serious reservation about the lawful inclusion of the fourth defendant (“Persons Unknown”) in the local authority’s case, because of the incredibly broad nature of such a class which would effectively result in an order against the entire world, including the Judge himself, and thus varied the fourth defendant to being “Persons Unknown seeking to express opinions about the teaching at the School”. The interim judgment dated 10 June 2019 can be read in full here.

Despite the soundings at the interim hearing, the claimant maintained its claim against the fourth defendant. Following trial, the learned Judge invited further submissions from the parties as to whether an injunction could properly be made final against “Persons Unknown”.

On 5 March 2020 a decision was handed down by the Court of Appeal in the case of Canada Goose (full decision available here).

Canada Goose is an international retail clothing company which sells luxury winter products manufactured using animal products including fur and/or down. In November 2017, Canada Goose opened a store on Regent Street in London which became the subject of demonstrations by animal rights activists such as Surge, PETA, and other activist groups, who largely organised online.

On the store’s opening morning, dozens of protesters gathered outside the shop holding posters with slogans reading “fur is murder”, “blood on your hands” and “is your vanity worth your suffering?” This continued into a two-year long protest with approximately three demonstrations a week, resulting in legal proceedings when Canada Goose attempted to obtain a final injunction against the “Persons Unknown” protestors.

The High Court declined to grant a final injunction against these unidentified protestors. This is because a basic norm of civil litigation is that a final injunction operates only between the parties to the proceedings, once that injunction has been ‘served’ on them. ‘Service’ refers to how a document is given to another party. If a document is not ‘served’ correctly then it cannot take effect, it will be as if the document did not exist or the other party had never heard of it. For example, unless a party explicitly gives you consent to send something to them by email or fax, you cannot electronically serve on them. Part 6 of the Civil Procedure Rules (usually referred to as ‘CPR’ or ‘the CPR’) outlines the basic requirements for service in civil proceedings (here).

If “Persons Unknown” are not identified, they cannot be added to the proceedings and further cannot be served upon by any of the required CPR 6 methods. A claimant who wants an interim injunction to take effect against “Persons Unknown” must take all reasonable steps to identify them and add these individuals as parties to the proceedings, and then serve on them in line with CPR 6.

The “Persons Unknown” defendant must be people who have not been identified but are capable of being identified and served with the proceedings, if necessary, by alternative service such as can reasonably be expected to bring the proceedings to their attention.

Canada Goose appealed to the Court of Appeal who dismissed their case, ruling that the description of the “Persons Unknown” respondents was too broad as, in its original form, it was capable of including protesters who might never even intend to visit the store. Moreover, both in the interim injunctions and in its proposed final form, the injunction was capable of affecting persons who might not carry out any unlawful activity as some of the prohibited acts would not be or might not be unlawful.

Notwithstanding this clarification of the relevant law, the claimant unperturbed still pressed the Court to extend its injunction against the fourth defendant. To assist the Court, defendants 1-3 and defendant 5 resisted the application on principle, arguing that the key document in the Claimant’s case which must set out the factual and legal basis for their claim, the Particulars of Claim, did not adequately define the target group; and that it was abusive to sue “Persons Unknown” when the individuals whom the claimant truly wished to sue were identifiable, as they did not wear disguise when protesting, and could have been identified and joined by name, had reasonable steps to do so been taken.

In his second judgment, Warby J refused to grant a final injunction against “Persons Unknown” and accordingly dismissed the claim against the fourth defendant. While there are very limited circumstances in which “Persons Unknown” can have a final injunction take effect against them, in line with Canada Goose, the learned Judge held that protester actions do not fall within exceptional category. This is because the facility to sue individuals anonymously as “Persons Unknown” is a significant departure from one of the fundamental tenants of civil litigation and must therefore be carefully restrained.

Further, it is another fundamental tenant of civil litigation that the claimant must ‘make the running’, i.e. prove their case as they have set it out in their pleadings, also known as statements of case. The claimant must do this on the balance of probabilities, by satisfying the Court their version of events is more likely than not.

In addition, a claimant cannot be allowed to claim there has been misconduct by “Persons Unknown” because this is a transient, ever-changing group of people and results in moving goalposts; unlawful acts by those outside of an activist movement assumed to be a part of the movement might result in the entire movement being restrained by an injunction.

The result of Canada Goose, as applied in the Birmingham School case, is that the claimant must tie their colours to the mast and identify specific individuals, and say clearly what those individuals have allegedly done which amounts to serious misconduct requiring an injunction.

The second judgment dated 8 April 2020 can be read in full here.

Conclusion

In this case, using its full resource, the local authority was able to demonstrate evidentially that the conduct of the first three defendants at their regular protests was unlawful and caused distress and harassment to teaching staff, pupils and local-residents. It was this behaviour (and not what was said or the subject-matter of the protest) that ultimately justified the Court’s interference with the defendants’ Convention Rights. That is not something lightly done, but here the need to curtail the illegality of the protests was the pressing need which allowed the Court to make final the injunctions preventing the first three defendants from protesting outside the School and in the manner in which they were doing do (use of amplification devices, speakers etc.)

The Court rejected the defences based on the Equality Act and the defendants’ religious convictions. This aspect of the case may well be the subject of further deliberation by the Court of Appeal.

Although the Court rejected the claim against the fourth defendant (“Persons Unknown”) predictably the restriction against the first three defendants will lead to the cessation of similar protestors by third parties in the exclusion zone. If not, the local authority will have to take steps to identify who the new protestors are and apply for identical injunctions against them.

The key therefore is to maintain good, lawful and structured protest in an organised and controlled manner. Specificity is needed both in respect of what is being protested about – which in turn affects how the protest manifests – and in the response to protest by claimants seeking to restrain this fundamental right through injunctive relief. Of course, some protest by its very nature is meant to be loud and disruptive. Feelings and emotions often run high, not least where the issues relate to parental choice and conviction of religion. But repetitive and concerted behaviour which is unlawful no matter how emotive the subject matter is likely to fall foul of any application for civil injunction, as shown in this case.

One feature of the School protests was the failure to prevent the wild rant of a third party who had travelled to Birmingham to attend the protests. Conversely though, the identity of the ranting individual was known to the claimant local authority and he should have been included by name to the case. This is an example of how the failure to do so in the hope that such persons can be caught by the catch-all “Persons Unknown” group is impermissible.

The second judgment has provided strong and welcome guidance for those seeking to resist draconian “Persons Unknown” blanket civil injunctions. Injunctions or Section 14 Orders (Public Order Act 1986) effectively banning groups from protesting in a wide locale should always be anxiously scrutinised to ensure compliance with the Canada Goose principles. Injunctions with excessive breadth are the kind of powers that public authorities like to wield but must now avoid. An individual with only a passing association with a protesting group may face being caught in the net of a section 14 Order, the effect of which would be an unacceptable curtailment of their individual Convention rights.

As to restrictions on what can and cannot be said on the internet using the platform of social media, the Court wisely rowed away from this issue, which survives for another day. There are strong defences available which raised untested and challenge principles of law.

The defendants in this case were represented by the Halcyon Public Law team, who are experts in civil injunctions.

Ramby de Mello and Tony Muman acted for the First to Third Defendants, with the assistance of Muhammad Ul-Haq. Paul Diamond and Thomas Green acted for the Fifth Defendant.

If you are concerned about restrictions on your ability to lawfully protest, or would like further information about this case, please contact the Clerks.

Is a handed-down judgment always final?

Article by Tony Muman and Naomh Gibson

It is common practice in civil litigation following a trial of the issues for the Court to formally reserve judgment and to later release confidentially to the parties and their legal representatives a draft and invite assistance in identifying any editorial corrections before it is formally published and made available to the public: Practice Direction 40E of the Civil Procedure Rules.

Publication of the judgment often follows a procedure referred to as ‘hand-down’, usually done at a short hearing at which the parties do not need to attend. The expectation is that between circulation of the draft judgment and its formal hand-down, the parties will have agreed all consequential matters and drafted an order for the Court’s approval. The sealed order usually follows the ‘hand-down’.

A useful example of the ‘hand-down’ process can be viewed on the Supreme Court’s website.

The header of most draft judgments will record in standard form:

“This is a judgment to which the Practice Direction supplementing CPR Part 40 applies. It will be handed down on **** at 10:30 in Court No ****. This draft is confidential to the parties and their legal representatives and accordingly neither the draft itself nor its substance may be disclosed to any other person or used in the public domain. The parties must take all reasonable steps to ensure that its confidentiality is preserved. No action is to be taken (other than internally) in response to the draft before judgment has been formally pronounced. A breach of any of these obligations may be treated as a contempt of court. The official version of the judgment will be available from the Courts Recording and Transcription Unit of the Royal Courts of Justice once it has been approved by the judge.

The court is likely to wish to hand down its judgment in an approved final form. Counsel should therefore submit any list of typing corrections and other obvious errors in writing (Nil returns are required) to the clerk to ****, via email at **** @justice.gov.uk, by 4:00pm on ****, so that changes can be incorporated, if the judge accepts them, in the handed down judgment.”

But what happens in the curious situation where the Court having reached a finding of fact in the draft trial judgment, circulated in accordance with the above practice, receives by return suggestions for amendments and in the exercise of its discretion removes from the final judgment said finding, to the discontent of a party who subsequently applies for reinstatement to the judgment the excised part complaining that the handed-down judgment is in different form to the draft.

In Birmingham City Council v Afsar and Ors [2020] EWHC 864 (QB) (here), Mr Justice Warby provided some illumination to this very issue.

Analytically, the learned Judge considered the claimant’s “reinstatement” application to be one of “waiver”. What the local authority was seeking to do was to waive confidentiality relating to that part of the (private) draft judgment which was omitted from the final (public) handed-down judgment. The claimant argued that the removed passage might be relevant to a possible appeal that it might want to bring and should not have been excised because it was “not really the sort of editorial correction that would normally be included in a return to a draft judgment”.

Unsurprisingly, the application was resisted on the following grounds:

(1) Until an order is sealed, the Judge has a discretion to alter a judgment, but this should not be done save in “exceptional circumstances”, or (perhaps an acceptable alternative) where there are “strong reasons”: In re Barrell Enterprises [1973] 1 WLR 19, 23 (Russell LJ), Compagnie Noga d’Importation et d’Exportation SA v Abacha (No 2) [2001] 3 All ER 513 [43] (Rix LJ).

(2) The exercise of the discretion should be even rarer after the delivery of a written reserved judgment, compared to an extempore judgment, or one that has remained in draft: Stewart v Engel (Permission to amend) [2000] 1 WLR 2268, 2276A (Sir Christopher Slade), Robinson v Fernsby [2003] EWCA Civ 1820 [98] (May LJ) and [113] (Mance LJ).

(3) Here, the claimant failed to show that the case is exceptional or that there are any strong reasons for granting its application. The judgment is complete and sufficient; there is no need for additional findings. Nothing turns on the draft finding of fact. It is not explained how it might be relevant to an appeal.

(4) A number of other factors count against the exercise of the discretion in the claimant’s favour. These included the facts that the draft was circulated in confidence, with the potential for sanctions in the event of disclosure, as the rubric shows. The claimant failed to raise any complaint when the judgment was delivered, and have delayed for months before making this application.

(5) There was an ulterior purpose to the application, which is an abuse.

(6) The contents of the finding in question should not be brought into Court even if the application is granted.

Warby J’s reasoning for dismissing the application overlapped with but were not the same as those relied upon by the defendants. Whilst noting the instructive statements of principle arising from each of the aforementioned authorities – including the reminder in Robinson v Fernsby at [86], that “[t]he judge … did not … alter a judgment that had been given” – he distinguished the applications in each of those cases to the very different application that he had to decide. In none of those cases was there an application such as the waiver application here: to vary or amend a judgment that had been handed down, after circulation of a draft and representations about the draft, and certainly not after the Court had made a final Order pursuant to the handed-down judgment.

He reminded himself of the main principles from Robinson v Fernsby:

(1) The introduction of the CPR did not affect the long-settled principle that a judge has power to recall, reconsider and alter an order made after he had given judgment at any time before the order is drawn up and sealed: [76], [78-82], [113], [120].

(2) The exercise of the jurisdiction generally requires exceptional circumstances or strong reasons, though there may be circumstances in which it must be exercised in the interests of justice: [83-86], [113], [120].

(3) Those criteria apply to the alteration of a draft judgment which has been circulated to the parties before being handed down: [96].

(4) The same criteria apply, with greater force, where the judgment is a formal written judgment in final form handed down after the parties have been given the opportunity to consider it and make representations on the draft; there are obvious reasons – including the desirability of finality – why the court should hesitate long and hard before making a material alteration to such a judgment: [80], [94].

(5) The question whether to exercise the jurisdiction can only depend on the circumstances of the particular case: [96].

(6) The decision in a particular case is an exercise of judicial discretion which will only be interfered with on appeal on the usual grounds for discharging a discretionary decision: [98].

The learned Judge rejected as “far too broad” the claimant’s submission that the Court was under a duty to reinstate any omitted passage which might be relied upon by the disadvantaged party in any future appeal. Whilst the interests of justice is always the driving factor, here as pointed out by the defendants there was no indication that the claimant intended to appeal, and it was difficult to see how the omitted part of the judgment would have assisted in an appeal in any event.

The claimant, correctly, did not suggest, and the Judge did not find, that the excise of that part of the draft judgment was wrong in principle. The learned Judge reminded himself that his decision to edit the draft judgment in the manner suggested was one which fell within the Court’s discretion and that he had removed a passage which he considered was not necessary to his decision and therefore better to be omitted.

Applying what he described as the “least stringent test”, the Judge considered that the claimant had failed to show exceptional circumstances or strong grounds as to why he should revoke his earlier decision.

Warby J however necessarily went further, placing reliance on the principle in R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No 2) (Guardian News and Media Ltd & ors intervening) [2010] EWCA Civ 158[2011] QB 218. The facts in Mohamed are immaterial to the issue although the principles are summarised as:

(1) A judge is not bound by the terms of a draft judgment that has been circulated in confidence. The primary purpose of the practice is to enable any typographical or similar errors to be notified to the court, but on rare occasions, and in exceptional circumstances, the court may properly be invited to reconsider part of the terms of its draft: [4].

(2) Draft judgments circulated in accordance with the standard practice are confidential as are the observations and submissions of the parties about the draft judgments: [11].

(3) The minimum requirement before wider circulation of the draft would be permissible is an application to the court for the confidentiality principle or understanding to be reviewed in the context of the individual case: [11].

(4) Tempting though it would be “to declare that the confidentiality principle as it applies to draft judgments should never be waived … adamantine rigidity of this kind would fail to allow for cases of high exceptionality”: [13].

On the basis therefore that the claimant’s application was for the waiver of confidentiality in part of the draft judgment; the application was made after the judgment had been handed down, and a final order had been made; the test to be satisfied is one of “high exceptionality”, or at least as stringent as the one identified in Robertson v Fernsby. That test was not satisfied in this case.

The defendants in this case were represented by the Halcyon Public Law team.
Ramby de Mello and Tony Muman (instructed by J.M. Wilson Solicitors) acted for the First to Third Defendants. Paul Diamond and Thomas Green acted for the Fifth Defendant.

For any enquiries please contact the Clerks.

Zambrano Carers and Human Rights: HOME OFFICE POLICY UNLAWFUL

Article by Naomh Gibson

Introduction

On 30 January 2020 and having heard a number of test cases, Judge Neville of the First-tier Tribunal (IAC) at Taylor House ruled that a person meeting the requirements Regulation 16 of the Immigration (European Economic Area) Regulations 2016 (‘the 2016 Regulations’) has a derivative right of residence notwithstanding that he or she has not yet made an application under the Immigration Rules and pursuant to Article 8 ECHR. The upshot is that the novel concept set out in Home Office policy that a Zambrano carer must first make an unsuccessful fee-paid human rights application before an application under the 2016 Regulations can be submitted is unlawful.

Judge Neville also held that the EU Treaties do not demand an applicant be entitled to a permanent right of residence after living continuously in the UK for a period of five years as Zambrano carers. It was held that a Zambrano right of residence is impermanent by its very nature, and that once the compulsion to follow the third country national (‘TCN’) falls away, there is no basis upon which the British citizen is deprived of his rights under the EU Treaties by the TCN’s removal.

This second issue is the subject of an on-going appeal to the Upper Tribunal. The Secretary of State elected not to appeal the finding on the first issue. The indication from senior sources is that the policy will now be subject to amendment giving effect to the FtT’s ruling.

Ramby de Mello and Tony Muman acted for the lead test appellants.

Background

It came to attention of David Tang & Co solicitors that in several of their appeal cases there was a recurring issue, summarised in the appeal as follows:

Where the Secretary of State accepts:

  1. That the appellant is the primary carer for a British citizen child; and
  2. That the child would not be able to remain in the United Kingdom or another EEA member state if the appellant were required to leave the United Kingdom for an indefinite period…

Is it in breach of the appellant’s rights under the EU Treaties in respect of entry to or residence in the United Kingdom for an application for a residence card under Reg. 20 of the 2016 Regulations to be refused because the appellant has not yet made an application for leave to remain under the Immigration Rules (or otherwise pursuant to Article 8 ECHR) on the basis of the relationship with the British citizen child? (Issue 1)

Exceptionally, exercising its general case management powers, the FtT agreed to consider this issue discretely as a preliminary issue.

The FtT also agreed to decide on a second matter as a preliminary issue, namely:

Where an appellant has spent five years living continuously in the UK with a derivative right of residence, have they acquired a permanent right of residence akin to that set out at Reg. 15 of the 2016 Regulations? (Issue 2)

Issue 1

It was common ground that each appellant was not an exempt person as defined by Reg. 10(7A) of the 2016 Regulations and met each of the criteria at Reg. 10(5). However, the applications for derivative residence cards were refused by the Home Office, on the basis that there is significant overlap with the right to respect for private and family life which is protected by Article 8 ECHR, and so an appellant who wishes to remain in the UK on the basis of family life with a British citizen ought to first make an application for leave to remain under Appendix FM to the Immigration Rules.

The Secretary of State reasoned that a derivative right to reside is a right of last resort which only applies if a person has no other means to remain lawfully in the UK. In doing so, she sought to gain assistance from the Court of Appeal judgment in Patel v SSHD [2017] EWCA Civ 2028).

This would mean that a Zambrano application must be refused if the applicant:

  • has never made an application under Appendix FM to the Immigration Rules or any other Article 8 ECHR claim, where that avenue is available;
  • has been refused under Appendix FM or Article 8 ECHR but their circumstances have changed since the decision was made – for example, the applicant applied on the basis of their relationship with a British spouse, but the couple now have a British child.

Further, the Secretary of State also argued that someone holding leave to remain under domestic law would not benefit from a derivative right to reside. She sourced the above principles from Patel. The FtT rejected this contention and held that the Respondent’s interpretation ‘cannot survive the actual legal principles engaged nor, in any event, would her interpretation of the law provide a sound basis for the requirement imposed by the guidance’ [28].

The FtT agreed that Patel, properly read, offers no support for either proposition. The judge ruled that the Respondent’s guidance contained legal principles which were ‘unsupported by, and in some cases completely at odds with, previous authority’ [46].

This is because Zambrano is concerned with the circumstances in which a TCN will have a right of residence under EU law, and in particular Article 20 of the Treaty on the Functioning of the European Union (‘TFEU’):

  1. 1. Citizenship of the Union is hereby established. Every person holding the nationality of a member state shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.
  2. 2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia:

    a) the right to move and reside freely within the territory of the member states; …

Therefore, the obligation and the jurisdiction to grant residence follows Art.20.There was thus a distinct separation between EU law, and other provisions such as the ECHR, to form ‘two sources of protection’ [32]. In the learned judge’s opinion, the correct approach to take in determining Issue 1 was as follows:-

  1. Is there a derivative right of residence as defined by Zambrano? If not;
  2. Would removal be contrary to the right for respect for the TCN’s family and private life afforded by Article 8 ECHR?

As such, the Respondent’s guidance (and their application of their guidance) erred in law as it is predicated on testing whether the TCN is being compelled to leave the EU, rather than testing what would happen if he or she were so compelled.

Issue 2

Some of the appellants argued that after living continuously in the UK for 5 years pursuant to a Zambrano right of residence, they had automatically acquired a right of permanent residence – contrary to the current regulations – on the basis of EU Treaties. This was a novel proposition which had not been directly explored in any previous authority.

This proposition was based on Article 21(1) TFEU, which provides:

“Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect.”

As per Lounes (Citizenship of the Union : Border checks : Judgment) [2017] EUECJ C165/16, [58], it was argued that it would be contrary to the underlying logic of gradual integration that informs Article 21(1) TFEU to hold that such citizens, who have acquired rights under that provision as a result of having exercised their freedom of movement, must forego those rights –– in particular the right to family life in the host Member State –– because they have sought, by becoming naturalised in that Member State, to become more deeply integrated in the society of that State.

It was submitted on behalf of the appellants that this ought to include the ability to build a family life with a TCN partner by the means of a derived right of residence to that spouse.

However, the FtT did not accept this part of the appellants’ case. While it was accepted that there was ‘some force’ in these arguments [57], there was no authority explicitly providing for the Directive to be applied ‘by analogy’ to Zambrano carers.

Ultimately, the appellants faced an insurmountable hurdle in that entitlement to a permanent right of residence by the TCN does nothing to fulfil the objectives of the TFEU; refusing to provide a right of permanent residence to a Zambrano carer after five years’ continuous residence as such does nothing to “[deprive a] Union citizens of the genuine enjoyment of the substance of the rights conferred by virtue of their status” nor “interfere, in particular, with a Union citizen’s freedom of movement”.

An example was given of a TCN who is the sole primary carer of a British citizen child who would be compelled to follow her outside the EU if she were removed. If this TCN was given leave in another Member State, then the Secretary of State could justifiably argue that the Zambrano right falls away as the UK would not be interfering with the child’s enjoyment of EU citizenship.

Conclusion

This is welcome clarification on the correct application of the Zambrano principle and the circumstances in which an appellant has a derivative right of residence. For those currently handling cases which engage these principles, please note that at the time of writing, the Home Office has yet to update their guidance.

The current document ‘Free movement rights: derivative rights of residence’ version 5.0 dated 2 May 2019 still requires to be updated (see here). Page 52 of 63 of the Guidance still erroneously states: Where a person wishes to remain in the UK on the basis of family life with a British citizen, they should first make an application for leave to remain under Appendix FM to the Immigration Rules, not for a derivative residence card on the basis of Zambrano.

Ramby de Mello and Tony Muman and appeared for the 1st-12th Appellants.

For any further enquiries please contact Tony and Ramby’s clerks on 0121 237 6035 or clerks@halcyonchambers.com 

Brexit – an interference with family life?

Article by Jonathan Bott

With the date for Brexit put off to another unknown date, one might think that the substantive effect of the UK leaving the European Union is yet to be felt. However, following A v A (2019), a recent unreported case where the father was represented by Suzanne Hodgkiss, Jonathan Bott and Emma Weaver, the spectre of Brexit is already raising a number of issues relevant in family matters.

In A v A, the father was a Pakistani national, who was living in the UK as a spouse of the mother, a Polish national. The father had received permission to remain as a result of the mother’s status, however, the mother- having been resident in the UK- had declined to apply for ‘Settled Status’ under the new UK regulations for EU nationals. This led to the mother wishing to return to Poland and arguing that she did not have the right to remain in the UK, which would affect the father’s contact with his child.

The court took the view that it should not attempt to force the mother to remain in the UK, when she did not have the right to do so, albeit she could have applied for Settled Status.

The difficulty this case highlights is where EU citizens have previously had a right to work and live in the UK, but as a result of the UK’s changing status, no longer have such a right and thereafter the effect upon family dynamics including contact with a non-resident parent.

Of course, the right to remain is just one element of post-Brexit uncertainty, there are many other issues in Family Law which will cause the courts to ponder, not least the doctrine of proportionality (which has its roots in EU, not UK law) and the confusion that is likely to reign if the relatively clear position under Brussels IIR about interstate recognition and enforcement of orders is swept aside. We will await further developments!

With a nationally renowned public law team (including Ramby De Mello and ‘Immigration Lawyer of the Year 2019’, Tony Muman) combined with a specialist family law team with experience of international child and family issues, Halcyon Chambers are alive to the many issues facing the courts following the UK leaving the EU and are ready to steer families through the choppy waters of post-Brexit legislation.

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.

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.

3 Nov 2016: The Claimants have WON the Brexit Judicial Review challenge.

Full Article 50 High Court judgment available here.

Tony Muman of Counsel instructed on behalf of AB Parties with the assistance of Thomas Green.

Further details to follow.

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

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.

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.

Court of Appeal rules on family migration and the minimum income threshold

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 [2013] 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 [2013] 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 [2008] UKHL 53 and Quila [2011] 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 [2013] 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.

Affluent people are likely to integrate better than poor people!

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.

To instruct Tony Muman or Ineza Hussain please contact the clerks.

Tony Muman listed in Chambers & Partners Bar Guide

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