Immigration and Minimum Income Requirements – “significant hardship” caused, but still ECHR compatible
6 April 2017
SS (Congo) v Entry Clearance Officer, Nairobi, [2017] UKSC 10 – read judgment.
The Supreme Court has ruled that, in principle, the need for spouses or civil partners in the UK to have an annual minimum income of £18,600 in order to obtain entry clearance for their non-EEA spouse/civil partner to be compliant with the European Convention on Human Rights (“ECHR”). However, the Supreme Court stated that the relevant Immigration Rules relating to such Minimum Income Requirements (“MIR”) failed to adequately take account of the need to safeguard and promote the welfare of children when making an entry decision. Finally, the prohibition on taking into account prospective earnings of the foreign spouse or civil partner when applying the MIR was inconsistent with the evaluative exercise required under Article 8, ECHR.
by Fraser Simpson
The Immigration Rules
In July 2012 the Immigration Rules (“the Rules”) were amended to include additional requirements for non-EEA (European Economic Area) family members to join their relatives in the UK. Appendix FM to the Rules included the MIR. This required the UK spouse or civil partner (“the sponsor”) to demonstrate that they had a gross annual income of £18,600 in order for their spouse or civil partner to be allowed entry to the UK. This figure was increased depending on the number of children. Only the sponsor’s current income was taken into account in assessing whether the MIR was met.
Prior to this amendment, the Rules only required that parties were able to “maintain and accommodate themselves and any dependants ‘adequately in the UK without resource to public funds’” [para. 4]. This procedure was difficult to administer and so the Home Office proceeded to devise an alternative policy that included a minimum income threshold for sponsors. After prolonged consideration of alternatives by the Government’s Migration Advisory Committee, the Government published the “Statement of Intent: Family Migration” in June 2012 that included the MIR proposal in the form that was ultimately adopted. This was fleshed out by the Home Office’s statements in “Grounds of Compatibility with article 8 of the European Convention on Human Rights”. This paper stated that the purpose of the amendments to the Rules was to ensure that “those who choose to establish their family life in the UK…should have the financial wherewithal to be able to support themselves and their partner without being a burden on the taxpayer” [Grounds of Compatibility, para. 52]. There was a presumption that, apart from exceptional cases, any decision taken in accordance with the Rules would be compatible with Article 8 [Grounds of Compatibility, para. 20]. Consideration of “exceptional circumstances” must also include consideration of any factors relevant to the best interests of a child in the UK. However, the relevant Instructions state that there is a need to consider “any factors involving the child in the UK that can only be alleviated by the presence of the applicant in the UK”.
Within the amended Rules, which received unanimous approval from the House of Commons, there is an exception to the MIR. This exception covers individuals seeking entry who have a “genuine and subsisting parental relationship with a child under 18 in the UK” or “with a partner in the UK” and would face “insurmountable obstacles” in continuing family life with that child or partner outside the UK.
Finally, there is the potential to grant entry to the UK even if the MIR or the specific exception is not met in the event that a refusal to grant entry would result in a breach of Article 8 rights [Immigration Directorate Instruction: Family Migration: Appendix FM Section 1.0a: Family Life (as a Partner or Parent): 5-year Routes and Appendix FM Section 1.0b: Family Life (as a Partner or Parent) 10-Year Routes]. If an Entry Clearance Officer believes that “exceptional circumstances” exist which would result in a violation of Article 8 rights if entry is refused, then they must refer the case to the Referred Casework Unit. The individual Officer has no personal power to grant entry on grounds beyond those contained within the Rules. The Officers are told to consider a number of factors, including the best interests of a child in the UK. This requirement stems from the Secretary of State’s duty under s.55, Border, Citizenship and Immigration Act 2009 to have regard to the need to safeguard and promote the welfare of children when making decisions with affect them. Generally, it is stated that requiring compliance with the Rules, including the MIR, will lead to a disproportionate effect on the child’s interests “only rarely” [para. 24].
Background to the Appeals [paras. 27-36]
Five cases were laid before the Supreme Court illustrating the problems that the MIR could cause for partners wishing to live together in the UK. Only one of theses cases, SS, was an appeal against findings of facts in legal proceedings.
SS, a citizen of the Democratic Republic of Congo (“DRC”), married another DRC citizen, NT, in September 2012. NT was initially granted refugee status in the UK but later became a naturalised British citizen. Shortly after the marriage, SS applied for entry clearance under Appendix FM. Permission was refused due to a failure to meet the MIR. SS then successfully appealed to the First-tier Tribunal. Whilst the Tribunal found that NT’s earnings did not satisfy the MIR (his gross annual earnings were £17,000, below the £18,600 threshold), the appeal was allowed on Article 8 grounds. The Tribunal considered that the couple would be unable to live together in the DRC. Additionally, NT was earning an income that would allow the couple to live in the UK without placing additional strain on the public purse. Finally, SS had suffered a miscarriage following the refusal of her application. NT had been unable to visit her for fear of losing his employment and so she “needed” to be admitted to the UK “so that she [could] take solace with her husband and begin to form family life with him here”. As a result of these factors, the Tribunal held that the interference with the Article 8 rights of SS was disproportionate.
The Upper Tribunal refused the appeal of the Entry Clearance Officer. Whilst the Tribunal were wrong in considering events following the refusal, there were “insurmountable obstacles” to the gamily life continuing in the DRC. This decision was successfully appealed to the Court of Appeal. The First-tier Tribunal had failed to give adequate weight to the MIR as part of the Article 8 balancing exercise and placed too much weight on the fact that NT had nearly satisfied the MIR. Additionally, no valid compelling circumstances requiring the granting of permission to enter had been identified.
Supreme Court judgment
- Challenging the Immigration Rules [paras. 52-59]
The Supreme Court began by considering the legality of the Rules themselves as opposed to consideration of their application to an individual case. In order to assess whether the Rules were compatible with Article 8, the Supreme Court applied the familiar four-stage test that was adopted in both R (on the application of Quila and another) v. the Secretary of State for the Home Department, [2011] UKSC 45 and R (on the application of Bibi) v. the Secretary of State for the Home Department, [2015] UKSC 68. The fourth aspect of this test, whether the measures strike a fair balance between the rights of the individual and the interests of the community, is often focussed upon. When assessing the legality of the Rules, the Supreme Court highlighted that they “would not be entitled to strike down the [Rules] unless satisfied that [they were] incapable of being operated in a proportionate way and so [were] inherently unjustified in all or nearly all cases” [Lord Hodge, Bibi, para. 69]. Despite the existence of factors in the Rules that made compliance difficult, the Rules would only be incompatible with Article 8 if they were “couched in terms which made non-compliance in individual cases practically inevitable’. However, as outlined above, there is the need to consider whether any request that resulted in refusal according to the Rules should actually be granted if the refusal would be incompatible with Article 8. Additionally, any decision can be appealed on the grounds that the decision is unlawful under s.6, Human Rights Act 1998 due to incompatibility with a Convention Right (s.84(1)(c), Nationality. Immigration and Asylum Act 2002). Even if the request should be refused under the Rules, both the Secretary of State and any Tribunal, will consider whether the refusal is compliant with Convention Rights. Accordingly, the argument that the Rules themselves were incompatible with Article 8 was bound to fail.
The Supreme Court moved on to consider the remaining substantive issues before them.
- Is the MIR compliant with Article 8? [paras. 80-87]
In considering whether the MIR was compatible with the Convention, firstly, the Supreme Court addressed which Convention Rights were engaged. The Supreme Court held that the MIR creates an obstacle to couples enjoying family life together as protected under Article 8. However, it does not prevent a couple marrying and, therefore, no issue arose under Article 12. As the MIR can interfere with the rights of individuals protected under Article 8 the Supreme Court then considered whether this interference could be justified.
The introduction of the MIR was part of an overall push to reduce net migration. The Supreme Court accepted that such an aim is legitimate. Further, the Supreme Court agreed with the Court of Appeal’s conclusion that a rational connection existed between this aim and the decision to implement the MIR. The Migration Advisory Committee had undertaken a thorough consideration of economical issues in order to arrive at a figure that, if set, would mean that individuals would not have recourse to welfare benefits. It was not possible to say that a less intrusive measure could have been taken i.e. the adoption of a lesser figure. The Supreme Court found that the work of the Migration Advisory Committee was “a model of economic rationality”. As a result, the MIR appeared a proportionate measure to achieve the accepted legitimate aim of reducing net migration to the UK.
The European Court of Human Rights (“ECtHR”) has also previously considered the existence of MIR within the Dutch immigration system. In Konstatinov v. the Netherlands, Application no. 16351/03, 26 April 2007 the ECtHR stated that it “did not consider unreasonable a requirement” for an individual to “demonstrate that he/she has sufficient independent and lasting income, not being welfare benefits, to provide for the basic costs of subsistence o his or her family member with whom reunion is sought” [Konstantinov, para. 50].
The Supreme Court therefore concluded that, in principle, the MIR was justified and compatible with Article 8.
- Treatment of Children [paras. 88-92]
The Supreme Court then went on to consider the general position of children under the Rules. Appendix FM of the Rules, which includes the MIR, states that it “takes into account” the Secretary of State’s duty under s.55, Border, Citizenship and Immigration Act 2009 to safeguard and promote the welfare of children when making decisions with affect them. Despite this statement in Appendix FM, and the general statutory duty on Entry Clearance Officers to consider the welfare of children under s.55, Border, Citizenship and Immigration Act 2009, this did nothing to support the assertion that the relevant consideration were sufficiently taken into account in Appendix FM itself.
The instructions to Entry Clearance Officers, discussed above, states that there needs to be factors “that can only be alleviated by the presence of the applicant in the UK”, such as support during a major medical procedure or in order to prevent abandonment. Such a highly prescriptive approach was, in the Supreme Court’s opinion, inconsistent with the approach advocated by the ECtHR in Jeunesse v. the Netherlands [GC], Application no. 12738/10, 3 October 2014. In Jeunesse the ECtHR considered the approach that should be adopted when considering the impact of a decision to remove a parent on the welfare of a child. Such considerations were equally applicable to decisions surround the reunification of a parent with a child. The ECtHR stated that there was a need to assess all evidence in terms of “practicality, feasibility and proportionality”. The approach set out in the instructions to Entry Clearance Officers set a much higher bar which was inconsistent with Jeunesse. Accordingly, the Supreme Court stated that there was the need for amendment of the instructions in order to bring them in line with the approach of the ECtHR in Jeaunesse. The Rules and Instructions, as they stand, failed to adequately promote the welfare of children as required by s.55, Border, Citizenship and Immigration Act 2009, As a result, the Supreme Court issued a declaration that both were unlawful.
- Alternative Sources of funding [paras. 93-101]
When considering the form of the MIR to be included within the amended Rules, the Migration Advisory Committee excluded consideration of potential future earnings of the spouse seeking entry for reasons of practicality. In certain circumstances, this lead to the refusal of entry even if granting such entry would be consistent with the general objectives of the Rules – to prevent entry of individuals that are likely to be a burden on the State.
The Supreme Court proceeded to consider the legality of this approach under common law principles and the HRA. The rationality of this aspect of the Rules under common law principles was quickly dispensed with. The restriction may appear harsh, however it had received careful consideration by the Migration Advisory Committee and the Secretary of State. The Supreme Court concluded that it was not irrational in the common law sense to give priority to “simplicity of operation and ease of verification” by imposing this restriction.
Under the HRA, the Supreme Court had to consider whether this restriction was compatible with the general balancing approach required by Article 8. Avoiding a financial burden is a legitimate concern that can be considered in the Article 8 balancing process, but restricting this with a prohibition on taking into account future earnings was undue. The Supreme Court concluded that the Rules were too restrictive and a broader approach with regards to consideration of relevant issues, including potential future earnings, was necessary in order to ensure that the decisions of Entry Clearance Officers were consistent with their obligations under the HRA to comply with Article 8. This did not impact the legality of the Rules, but the Supreme Court highlighted that the Secretary of State should consider whether to amend the rules, or merely the guidance, to include circumstances in which alternative sources of funding may be taken into account.
- The Appeal by SS [paras. 102-107]
Finally, the Supreme Court considered the only substantive appeal presented to them. The circumstances surrounding the appeal of SS have been highlighted above. The crucial finding was that there were “insurmountable obstacles” to the couple living in the DRC. When considering the factors contained within the ECtHR judgment in Jeunesse, family life would be seriously ruptured as they would only be able to spend short periods of time together in the DRC. Additionally, the sponsor had been resident in the UK for a number of years, he had two children, both British citizens, in the UK and also other extensive ties to the UK. There were also no factors of immigration control of public order that would point towards refusing the request for entry. Despite the fact that the relationship was developed when there was no guarantee that the sponsor’s spouse would be admitted, this was merely a factor weighing in favour of refusal.
As a result of this consideration, the Supreme Court concluded that the decision of the Upper Tribunal should be restored.
Conclusion
The conclusion of the Supreme Court with regards to the compatibility of the Immigration Rules with the ECHR is, generally, unsurprising. Considering the fact that the Rules explicitly require any refusal to be subsequently assessed in light of Article 8, it is clear that on the face of it there appears no compatibility issues.
However, the Secretary of State will be busy in assessing the best way to revise the Rules, or Guidance, in order to ensure that both the best interests of the child are appropriately addressed and that the proportionality assessment required by Article 8 is not unduly restricted by a prohibition on consideration of any alternative sources of funding.
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