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

43templerow chambers are pleased to confirm that Immigration & Public Law Barrister Tony Muman is featured as a “notable practitioner” on the Midland Circuit in the Chambers & Partners UK Bar Guide. To discuss instructing Mr Muman please contact our clerking team.

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