MM(Lebanon) and Others, R (on the application of ) v Secretary of State for the Home Department & Anor  EWCA Civ 985 (11 July 2014) – read judgment
Neil Sheldon of 1 Crown Office Row acted for the appellant Secretary of State in this case. He has not had anything to do with the writing of this post.
Provisions in the Immigration Rules which impose income requirements on individuals living in the United Kingdom, who wish to bring their non-European Economic Area citizen spouses to live with them, are not a disproportionate interference with their right to family life under Article 8 of the European Convention on Human Rights. The Court of Appeal has also underlined the important (but often misunderstood) point that there is no legal requirement that the Immigration Rules should provide that the best interests of the child should be determinative. Section 55 of the Borders, Citizenship and Immigration Act 2009 is not a “trump card” to be played whenever the interests of a child arise.
This was an appeal by the secretary of state against a ruling by Blake J in the Administrative Court regarding the 2012 changes to the Immigration Rules. These created a requirement that a UK partner who wishes to sponsor the entry of a non-EEA partner must have a “Minimum Income Requirement”(MIR) of £18,600 gross per annum and additional income in respect of each child who wishes to enter the UK. Before 2012, the maintenance requirement for a non-EEA spouse or partner of a British citizen to be given entry clearance was that the parties had to demonstrate that they could maintain themselves “adequately” without recourse to “public funds”. That phrase included social housing and most welfare benefits, but excluded the NHS, education and social care. The rules were changed because the pre 2012 prohibitions and controls on the ability of migrant spouses or dependants to take advantage of public funds such as welfare benefits were too complex to administer and enforce. Furthermore, once a non-EEA migrant had obtained Indefinite Leave to Remain, there was a considerable burden on the public purse. The policy intention behind the new provisions was
that those who choose to establish their family life in the UK by sponsoring a non-EEA partner to settle here should have sufficient financial independence to be able to support themselves without becoming a financial burden on the taxpayer, and moreover should have the financial wherewithal to ensure that their migrant partner is able to participate in everyday life beyond a subsistence level and therefore able to integrate in British society. (Witness statement from the Migration Policy Unit of the Home Office)
In the words of Laws LJ (in A.M. (Ethiopia) 2008), the only purpose of these Immigration Rules was to “articulate the Secretary of State’s specific policies with regard to immigration control from time to time as to which there are no presumptions, liberal or restrictive”. Therefore the court’s assessment must be limited to their wording and there was no basis for searching for some further, extraneous, “purposive” or meta-construction. In a similar vein, Lord Carnwath said that the rules ought to be given their ordinary meaning, without “distortion by reference to any supposed over-arching objective”, such as the promotion of family life (A.M.).
Three individuals, two British citizens and one with the right of abode in the UK, had challenged these rules in judicial review proceedings in order to strike down the MIR altogether as being incompatible with Articles 8, 12 and 14 of the ECHR, or as being irrational at common law. They had succeeded at first instance under Article 8, although they had not satisfied the judge that the rules were discriminatory under Article 14.
The issues for the appeal court were as follows:
- had the judge correctly characterised the requirements’ nature and aims;
- what were the principles by which the court should consider the requirements’ compatibility with UK partners’ Article 8 rights;
- had Blake J been correct to conclude that the requirements were in principle incapable of compatibility with UK partners’ Article 8 rights;
- was the MIR’s direction that third party funding should be disregarded irrational at common law;
- had the judge been correct to find that any Article 14 discrimination caused by the requirements was justified.
The court upheld the appeal.
Reasons behind the judgment
In the Administrative Court Blake J had provided an “impressive” analysis of the case law of the European Court of Human Rights (“ECtHR”) concerning provisions in national rules that restrict the right of immigration into the UK.
It was fundamental that under section 1(1) of the Immigration Act 1971 that British citizens are “free to live in the United Kingdom without let or hindrance”, subject only to specific and limited statutory restrictions. However, the Immigration Rules have, historically, extended to making provision restricting the admission of dependants of persons lawfully within the UK. Where a person’s Article 8 rights were concerned, in the important 1985 decision of Abdulaziz, Cabales and Balkandali v UK the majority of the ECtHR re-stated not only the well-established international law rule that a State has the right to control the entry of non-nationals into its territory, but also confirmed the principle that “the extent of a State’s obligation to admit to its territory relatives of settled immigrants will vary according to the particular circumstances of the persons involved”. In that judgment, it will be remembered, Strasbourg held that there was no interference by the UK with the Article 8 rights of the three women by refusing to allow their husbands to join them in the UK. The ECtHR laid down the broad proposition that
the duty imposed by Article 8 could not be considered as extending to a general obligation on the part of a Contracting State to respect the choice by married couples of the country of their matrimonial residence and to accept the non-national spouses for settlement in that country
– particularly where it was not shown that there were obstacles to establishing family life in their own or their husbands’ own home states or that could not be expected of them.
Blake J had accepted that the MIR requirements had, as their legitimate aim, the reduction of expense on the public purse and a better opportunity for greater integration of non-EEA spouses within British society. But he was troubled by several features of the new rules, which, when applied either to recognised refugees or British citizens, were so onerous in effect as to constitute “an unjustified and disproportionate interference with a genuine spousal relationship” and the consequences were so excessive in impact as to be “beyond a reasonable means of giving effect to the legitimate aim”. These features included the requirement of a minimum savings figure of £16,000 and the disregard of any undertakings of third party support and no regard for the future earning capacity of the non-EEA spouse for the first 30 months. The judge particularly objected to the fact that there was no doctrine of the “near miss” whereby a narrow failure to meet a requirement of the rules could be cured by indulging in “an Article 8 balance”. The respondents in this appeal also submitted that the rules concerning the new MIR were deficient in making no reference to or provision for exceptions.
In an important case on the Convention compatibility of Immigration Rules, the House of Lords considered a challenge to a statutory scheme to prevent “marriages of convenience” in R (Baiai and another) v Secretary of State for the Home Department (No 2) (see our post on Quila and other challenges that followed this case). Here, the question was whether those rules disclosed an interference with the applicants’ right to marry under Article 12 of the Convention. They decided it was, because the scheme imposed “a blanket prohibition on the right to marry”, and the Strasbourg Court took the same view when the issue arose before it in O’Donoghue v UK.
In other words, because the “exceptional, compassionate circumstances” provision did not envisage the grant of a “marriage visa” where it was clear the marriage was unforced, that provision was not specifically directed to the objective that the new IR was intended to deal with, viz. the problem of forced marriages.
The line of cases from A.M. (Ethiopia) indicates that the Secretary of State’s duty is to protect an immigrant’s Convention rights whether or not that is done through the medium of the IRs so that “it follows that the Rules are not of themselves required to guarantee compliance with the [relevant Article]”(per Laws LJ in AM at ). A particular rule did not, in each case, have to result in a person’s Convention rights being guaranteed, but if the rule was incapable of being applied proportionately or justifiably, it would be unlawful.
Whilst the MIRs under attack constituted a very significant interference with the Article 8 rights of the UK partners, the aims of the policy were sufficiently important to justify this limitation on Convention rights. Not only was there was a rational connection between the figures required and the policy aim, the secretary of state had analysed the effect of immigration of non-EEA partners on the benefits system, the level of income needed to minimise dependence on the state, and reached a rational conclusion on the link between income and integration. If a form of income requirement was to be imposed, the executive had to draw a line somewhere. Unless it was wholly unreasonable, the court should not interfere – the judiciary was in no position to substitute its own view as to the appropriate income level for that chosen by the executive. The secretary of state had demonstrated that the interference was the minimum necessary and struck a fair balance between the interests of the groups concerned and the community in general.
It followed that the third party funding requirement was not irrational, nor had it been imposed on a whim. As for the claim under Article 14, the secretary of state had been aware of the indirect discriminatory impact the requirements could have. It was impractical and inappropriate to try to make provision in the Rules for possible impact on different groups. The judge had been correct to find any indirect discrimination was justified.
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