The minimum income requirement for spouse/fiance/partner visas: MM v Secretary of State for the Home Department [2014] EWCA Civ 985 Facts of the case These appeals concerned two British citizens, Mr Abdul Majid and Ms Shabana Javed, who have the right of abode in the United Kingdom and Mr MM, who has refugee status and as such has the right to remain in the UK. All three were the spouses to non EEA spouses who do not have the right of abode and wished to have their spouses come to live with them in the UK. On 9 July 2012 changes were made to the Immigration Rules. The updated rules created a requirement that a UK national who wished to sponsor the entry of a non-EEA spouse/partner must have a Minimum Income Requirement of at least £18,600 per annum gross. If there are children the UK National must have an addition income of £3,800 for the first child and a further supplementary £2,400 income for each additional child who wishes to enter or remain in the UK. However, if the UK partner does not have the requisite minimum gross income, then to obtain entry of the non-EEA partner the UK partner must demonstrate having a minimum of £16,000 savings plus additional savings of 2.5 times the amount that is the difference between the UK partner’s gross annual income and the total amount of income required. The Question of Law The key question was whether these minimum financial requirement provisions are unlawful as being a disproportionate interference with the right to respect for private and family life enshrined in Article 8 of the European Convention of Human Rights (ECHR) rights. There were also some subsidiary questions on appeal, the chief one of which is whether the provisions, which the Secretary of State for the Home Department (SSHD) accepts are indirectly discriminatory within Article 14 of the ECHR, can be justified. Article 14 prohibits discrimination in the application of other Convention rights. The Court of Appeal summarized the issues in list form as follows: i) Did the judge correctly characterise the nature of the new MIR and their aims? ii) What are the legal principles by which the court should consider the question of the compatibility of the new MIR with the Article 8 rights of UK partners (and other relevant persons)? iii) Was the judges analysis and conclusion that the new MIR are, in principle, incapable of being compatible with Article 8 rights of UK partners (and others if relevant) correct? iv) Is the provision in the new MIR precluding reliance on third party funding irrational under the common law? v) On the basis that the new MIR did result in indirect discrimination within Article 14, was the judge correct to hold that such discrimination was justified? vi) Is there a separate ground of objection to the new MIR, based on section 55 of the 2009 Act? vii) What is the relevance of the exceptional circumstances provisions in the draft Guidance and the Immigration Directorate Instructions? The Lower Court Decision Prior to the case being held in the Court of Appeal it had been decided by Mr Justice Blake in the High Court that the minimum financial threshold requirement by the Secretary of State amounted to a disproportionate interference with the UK partners Article 8 rights. He characterised this as the right to reside with ones spouse, to enjoy cohabitation and to found a family. However, he refused to grant the claimants any declaratory relief to that effect and dismissed the claimant’s cases based on discrimination and Article 14 of the ECHR. The Secretary of State then appealed this decision to the Court of Appeal. Discussion in the court of appeal The Immigration Act 1971 is the legislative framework that defines who has a right of abode in the UK. The Act also gives power in the SSHD to lay down the rules setting out the practice to be followed to regulate entry and residence in the UK for people who do not have a right of abode. The SSHD is under a common law duty not to promulgate an Immigration Rule that is discriminatory, manifestly unjust, made in bad faith or involves such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men. If she does promulgate such an Immigration Rule, it can be struck down or the offending part can be severed. However it is also the duty of the Secretary of State to formulate an IR in a way that means that even if it does interfere with a relevant Convention right, it has to be capable of doing so in a manner which is not inherently disproportionate or inherently unfair. The court attempted to reconcile these two responsibilities of the SSHD. The court held that the Immigration Rules are not to be construed on the presumption that they will guarantee compliance with the relevant Convention right. Therefore, a particular Immigration Rule does not, in each case, have to result in a persons Convention rights being guaranteed. In a particular case, an Immigration Rule may result in a persons Convention rights being interfered with in a manner which is not proportionate or justifiable on the facts of that case. That will not make the Immigration Rule unlawful. But if the particular Immigration Rules is one which, being an interference with the relevant Convention right, is also incapable of being applied in a manner which is proportionate or justifiable or is disproportionate in all (or nearly all cases), then it will be unlawful. It stated that where the relevant group of Immigration Rules provide a complete code for dealing with a persons Convention rights in the context of a particular Immigration Rule or statutory provision, such as in the case of foreign criminals, then the balancing exercise and the way the various factors are to be taken into account in an individual case must be done in accordance with that code. However, references to exceptional circumstances in the code will entail a proportionality exercise. But if the relevant group of IRs is not such a complete code then the proportionality test will be more at large, albeit guided by the Huang v SSHD [2007] UKHL 11 tests and UK and Strasbourg case law. The court held that a UK national’s statutory right to reside in the UK without let or hindrance is, in my view, a personal right. It cannot be extended to others. Nor can the rights of a person with refugee or HP status be extended to others. There is nothing in the 1971 Act or the common law that grants a constitutional right of British citizens to live in the UK with non-EEA partners who do not have the right of abode in the UK and who are currently living outside the UK. The court maintained that there is no absolute right to marry and found a family in the UK if it involves marriage to a non-EEA citizen who then wishes to reside in the UK. Therefore the conclusion of the SSHD that the aims that Blake J identified were sufficiently important to justify limiting Article 8 rights was both rational and unobjectionable. The Secretary of State does not have to have irrefutable empirical evidence that the individual features of the policy proposed will achieve the social aim intended. It is enough that she should have a rational belief that the policy will, overall, achieve the identified aim. The new MIR were the result of a great deal of work to identify (a) the long-term requirements of some immigrants on the welfare system and (b) what income was needed to lessen or avoid that dependence and how that income could be calculated. The conclusion that a family with more income would be more likely to be capable of integrating is not susceptible of empirical proof, but a belief in the link between higher income and the likelihood of better integration is rational. The non-EEA partner can enter the UK, provided the UK partners level of income, judged by the policy of the new Minimum Income Requirement to be appropriate, is reached. Admittedly there is a total ban on the entry of non-EEA partners where the UK partner cannot reach the required minimum and I appreciate that this ban could be life-long. But there has always been a maintenance requirement at a certain level and if that level was not reached by the UK partner, then there was a total ban on the entry of the non-EEA partner unless, in an individual case, it would be disproportionate under Article 8(2) to refuse entry in that instance. Moreover, maintenance requirements are not unique to the UK and it does not set the highest minimum annual income. The court also concluded in respect of the impact of the MIR on children that Section 55 of the UK Boarders Act 2009 was not a trump card to be played whenever the interests of a child arise. If a child in the UK is to be joined by a non-EEA partner under the partner rules then it is reasonable to require, for the childs best interests, that there be adequate financial provision for the unit of which the child will be a part if the non-EEA partner joins it. A the financial requirements are considered lawful, then, on the financial front, that must mean the section 55 duty has been discharged in framing the relevant Immigration Rules The Appeal of the Secretary of State was therefore allowed.
Posted on: Tue, 15 Jul 2014 12:53:07 +0000
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