The Round Up: Couples in the Courts

27 February 2017 by Thomas Beamont

Immigration law featured heavily in courts in the past week, with judgments in two cases handed down by the justices.

The first, MM and others, concerned the Minimum Income Rule, which requires a minimum income of £18,600 to sponsor a foreign spouse’s visa to live in the UK.

The second, R (on the application of Agyarko), saw the Supreme Court uphold the treatment of those unlawfully in the UK who have formed relationships with British citizens.

The Minimum Income Rule

The Immigration Rules (“the Rules”) were amended in 2012 to introduce the Minimum Income Rule. This requires spouses or civil partners in the UK of non-EEA nationals wishing to settle in the UK to earn £18,600 per annum, plus additional sums for dependent children.

The rule affects a high number of spouses trying to enter the UK. 30,000 applications were refused between 2012 and 2014. Only 52 applications were referred for consideration outside the rules, of which only half succeeded.

The appellants claimed that the Rules, and the Immigration Directorate Instructions on family migration which gives guidance to entry clearance officers, were incompatible with the right to family life in article 8 ECHR.

It was also claimed that the Rules fail to take account of the Secretary of State’s duty to have regard to the need to safeguard and promote the welfare of children when making decisions which affect them. This duty arises under section 55 of the Borders, Citizenship and Immigration Act 2009.

Finally, the exclusion of sources of income other than those of the sponsoring spouse was claimed to be unlawful.

The right to family life

The Court held that it is “within the margin of appreciation” of the Home Secretary to impose a Minimum Income Rule. There is “no general obligation to respect a married couple’s choice of country in which to reside or to authorise family reunification.” (see [41]) This means that the Minimum Income Rule is consistent with the Home Secretary’s obligations under article 8 ECHR.

The s.55 duty

Appendix FM of the Rules asserts that it “takes into account” the Secretary of State’s duties to safeguard and promote the welfare of children. The Home Secretary argued that as the effect of that duty will determined by the entry clearance officer in a particular case, it follows that the question of whether the assertion in Appendix FM is correct must be considered on the facts of a particular case.

Notwithstanding the lawfulness of that principle, the Court found that “the instructions in their present form […] do not adequately fill the gap left by the rules.” (see [91]) The Court therefore granted a declaration that both the rules and the instructions are unlawful. The Home Office now must amend the rules and guidance on cases in which children are involved.

Other source of income

At present, the Rules exclude other sources of income than those of the sponsor in calculating whether the £18,600 threshold is reached. This was held to be lawful. Although recognised as harsh, it is not irrational for the “simplicity of operation” afforded by the Rules to be given priority by the Home Secretary (see [98]).

However, whether a case failed under the Rules but fell to be considered under article 8, a tribunal deciding that appeal can judge “for itself the reliability of any alternative sources of finance.” Therefore a broader approach in article 8 cases may be required. This means that it is possible for a spouse to fail under the Rules, but succeed under article 8.

The Agyarko case

The second case related to couples have formed relationships during the period of their unlawful residence in the UK with British Citizens.

“Insurmountable obstacles”

Appendix FM of the Rules require applicants to have a genuine subsisting relationship with a British citizen in the UK, and for there to be “insurmountable obstacles” to family life were they to have to leave the country.

Therefore if it the obstacles to family life were the partner have to leave the UK less than “insurmountable”, the Home Secretary is entitled to deny the partner the right to live in the UK.

Again, the Court found that the Home Secretary had acted within her “margin of appreciation” to adopt a policy which requires “insurmountable obstacles” before a partner be allowed to stay in the UK. The requirement is a stringent test, rather than merely one relevant factor, but this does not make it incompatible with article 8.

On the facts of the appellants’ cases, there was no basis to challenge the refusal to the partner of leave to remain in the UK.

In the courts

In the case of Steinfield and Keidan the Court of Appeal has upheld a High Court judgment refusing the judicial review of the Secretary of State for Education’s decision not to propose a change to the prohibition of opposite-sex couples entering into civil partnerships. The Court considered that the bar constitutes a potential violation of the appellants’ human rights under article 14 ECHR (prohibition of discrimination) when read with article 8 (right to respect for private and family life.”) However, the majority held that the prohibition formed part of the Secretary of State’s policy of “wait and evaluate.” In the context of a pending Private Members Bill on the issue, the Court refrained from making a declaration of incompatibility with the appellants’ rights under the ECHR. Back to Parliament the issue goes.

In the news

The Observer has published a letter from over 50 lawyers warning of a crisis in human rights after Brexit. The letter states that “The ECHR has been the bedrock of peace in Europe since the second world war…” The authors claim that the UK faces “the very real threat of a human rights crisis with the UK trading away protections against torture for grubby trade deals with foreign tyrants.”

The Independent reports that the plan to replace the Human Rights Act with a “British Bill of Rights” has, once again, been postponed. The policy, first suggested before the 2010 election by then-Leader of the Opposition David Cameron, is unlikely to be scrutinised by the government until 2019. In the run up to Brexit, re-casting the entirety of human rights law in the UK is a stretch too far. According to Justice Secretary Liz Truss, constitutional reforms should be done “one at a time.”

RightsInfo reports that a local council who took a newborn baby away ffrom his parents violated their human rights. The council claimed to have concerns about the baby’s care needs, particularly due to the father’s view on formula milk. Judge Cobb said that there was “no doubt” that the couple’s rights to a family life under article 8 ECHR and to a fair trial under article  6 ECHR had been violated. Contrary to the council’s claims, the parents were never warned of the attempts to take their child away. The couple received £11,250 in compensatory damages.

Upcoming events

Westminster Law School are hosting a conference on human rights and international criminal law on 10^th March 2017. The event lasts all day and is free. Find out more here.

by Thomas Beamont