BRITCITS
OVERVIEW OF JUDGMENT – 22 FEBRUARY 2017
MM AND ORS vs SECRETARY OF STATE, SUPREME COURT
The Court of Appeal making families
wait for four months felt tortuous. It
seemed like a gift though when the Supreme
Court took a full year, handing down its judgment on the one year
anniversary of the hearing. There had
been much hope pinned to this, that these judges would see what the ones in the
preceding court hadn’t, and would undo the injustice done to families by our
paid representatives. Perhaps because it is the last hope – unless this case
goes to the ECHR, which given the case law references may be unlikely.
The CoA had shocked us (case
overview here) and Supreme Court wasn’t to be left behind. However, the judgment was also not as bad as
the headlines suggested, nor as even I initially though. It wasn’t as great as it should have been,
but there are some positives.
In summary, the minimum income
requirement, at £18,600 is retained. But
the Home Office has been told to amend the rules and guidance to ensure best interest
of children is the primary consideration and to consider how alternative means
of reliable funding can be taken into account.
The
judgment
Looking through the judgment in some
detail:
Introduction
In the same paragraph [2] the judges
look at both, the median and mean earnings, which isn’t consistent. The judges
acknowledge there is a disparity in earnings between men and women, and across
the regions – yet seem to accept the inherent discrimination. They also reflect that 301 out of 422 listed
occupations – ‘many providing essential
public services’ – have average annual earnings below £18,600, yet don’t
take into account that these rules therefore do not serve public interest by
effectively forcing those providing these essential public services out of the
UK, or at least, out of their occupation.
There is no acknowledgement that there may not be enough jobs paying the
elusive £18,600 outside London, and that being forced to move to a region where
such salaries are the norm actually leaves the family in a worse financial
position.
The MIR and the background to its
introduction
We are reminded that even pre July
2012, sponsors would need to show they were able to maintain and accommodate
themselves and any dependants ‘adequately in the UK without resource to public
funds’ such as social housing and welfare.
NHS, education and social care are not classed as public funds for this
purpose. However, this was considered
problematic because of inconsistencies in allowing for current and prospective
income of sponsor and applicant, third party support and housing costs.
Additionally it did not prevent a burden on the taxpayer once the applicant had
indefinite leave to remain, when they’d be eligible for full access to welfare
benefits.
The above are given as the reasons
for the MIR. I have so many issues with
this.
1.
The rules even now allow for current
income of the sponsor; they also allow for prospective income of sponsors who earn
over £18,600 overseas and have a confirmed job offer in the UK paying over that
threshold.
2.
The judgment deems HO does consider
alternative means of funding – not clear what, but this may mean third party
support.
3.
Even now, spouses can claim full
benefits once they get ILR.
So taking the combination of the
July 2012 rules and the judgment, caseworkers should surely be faced with the
same problems the HO claim they did pre July 2012. What is the point then?
With regards to public funds – I
cannot see in the judgment any mention of spouses paying an Immigration Health
Surcharge, or the taxes and National Insurance they pay from their earnings which
finds its way to the NHS.
There is much in the judgment about
the Migration Advisory Report that came up with the £18,600, including that
this was the total household income that disqualified even the sponsor
from becoming ‘a burden on the state’.
The aims of the MIR it is claimed by
the HO are to
-
Ensure “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. Moreover the sponsor should bear the financial
responsibility of ensuring the migrant is well enough supported to be able to
integrate and play a full part in British society”.
-
Reduce net migration
-
Restore public confidence in the
immigration system
HO anticipated these rules would
reduce family visas by about 16,100 per year, and net migration by 9,000. This much havoc wreaked on families for this you ask. Indeed.
The new Rules and Guidance
It seems part of what has fed into
the judgment is that the new rules were unanimously approved by a positive
resolution of the House of Commons, and the motion of regret in the House of
Lords was withdrawn.
Deep breath. First of all, when the new rules were
approved, it had not been made clear what the rules were – they had they had
not been run through in detail in parliament, and they were rushed in, with
less than one month’s notice. The Joint
Committee of Human Rights also said that the rules had not been through the
required level of parliamentary scrutiny.
Once there was more clarity on what the rules actually meant, both
Houses of Parliament voiced dismay at what the rules were doing to
families. Evidence was submitted by the
MM lawyers on these points. Additionally, withdrawal of the motion of
regret by peers is convention and very standard behaviour in the HoL. It is not
a condoning of the rules. Although I
didn’t know this, I found out by speaking to the wonderful Lord Avebury and
Baroness Hamwee. I cannot imagine the
judges are not however aware of this convention.
The judgment then goes into the
background of the actual cases brought before them. I am seriously peeved by
the repeated mention of the heritage of the British citizens who are looking to
sponsor a foreign partner. Why is it
relevant when the judgment gives no weight to the disparity of average earnings
amongst different ethnic groups? It just
serves to insinuate there is a two-tier nationality. I also wish the cases had been of a sponsor
who was a British citizen by birth, even going back several generations and
unable to sponsor their partner from America or Australia. It shouldn’t make a difference, but I can’t
help but wonder if it would have.
The case law
There is case law indicating that
there is ‘no general obligation to respect a married couple’s choice of country
to live in…’ and this is used by the judges to go further and say ‘no general
obligation…to authorise family reunification.
It will depend upon the particular circumstances of the persons
concerned and the general interest.
Factors to be taken into account are the extent to which family life
would effectively be ruptured; the extent of ties in the host country; whether
there are “insurmountable obstacles”’….and whether when family life was created
it was known the immigration status of the foreign partner would be
precarious.
There are references to case law
where the foreign spouse had committed an offence in the UK – not relevant for
the most part. Importantly though the
judges reference case law that says best interest of children must be taken
into account (s55), even more so in the UK because we are a party to the UN
Convention on the Rights of the Child.
It seems the judges may have been
placated by
-
HO saying s55 would be adhered to
not just for kids in the UK, but even for those outside the UK.
-
Appendix FM purporting to reflect
article 8 and s55
-
Explanatory Memorandum stating the
purpose of the new rules is to set requirements which correctly balance right
to private and family life with public interest in safeguarding the economic
well-being of the UK by controlling immigration, and that best interest of kids
has been incorporated into the rules.
But just because the label says
something, it doesn’t mean that is what is in the tin…and to some extent the
judges do see that.
Challenging the rules under article
8
The Quila case is interesting – it
restricted the admission of foreign spouses only where both parties were over
21, in an attempt the HO said to deter forced marriages. Supreme Court in this case said the number of
unforced marries which such an age restriction obstructed vastly exceeds the
number of forced marriages it deters….a sledgehammer to crack a nut approach
when the HO didn’t identify the size of the nut i.e. the problem. And this case thus went against the
government.
I cannot therefore understand why
the same reasoning is not applied to this case – the rules cause more damage to
law-abiding families who are not a burden on the taxpayer than deter those who
potentially would be. Well, the HO
certainly didn’t prove these rules help more than they hinder.
However, the court was not convinced
that these rules are inherently unjustified in all or nearly all cases and
hence the MIR was not ruled unlawful on article 8 grounds. Furthermore, case law indicates that the
rules themselves do not have to be
article 8 compliant –the refusal of a visa may however breach article 8 in
individual cases. Confused? Let me try
and explain. The rules do not have to
allow for article 8 rights, but the decision to grant or refuse a visa in an
individual case must take into account article 8– which can be done through the
combination of the rules, guidance, and tribunals. Additionally, the Home Secretary / Minister
for Immigration has discretion in granting entry clearance outside of the rules
(although there is no evidence to indicate this power is used).
So, it’s okay for the HO to refuse a
visa on the basis of rules which do not take into account article 8 rights,
because families will be able to go to tribunal to invoke article 8
rights.
“Thus whatever the defects there may
be in the initial decision, it is the duty of the tribunal to ensure that the
ultimate disposal of the application is consistent with the Convention.”
[59]
That going to tribunal is not an
option for all, because it costs a lot of money and means article 8 rights are
not respected for even those who do go to tribunal for the years any legal
proceedings take, is not addressed.
Had the Home Office not changed
their stance to accept that the rules are not all-encompassing when it comes to
article 8 rights, the judgment may have gone against them. Interestingly, the HO still aims for the
rules alone to lead to decisions which are compliant with article 8. The judges suggest this may not be
acceptable, but that is to do with the legality of the instructions, not the
rules – and it is the latter which they are being asked to make a judgment on, I
guess they are implying.
Acceptability of the MIR
“MIR has caused, and will continue
to cause, significant hardship to many thousands of couples, who have good
reasons for wanting to make their lives together in this country, and to their
children.” [80]
Here the judges acknowledge that the
type of families who the MIR will have a harsh effect on also includes Brits
who formed relationships before the MIR was introduced, and now find themselves
unable to return home. However, they go
on to say that just because a rule causes hardship to so many [suggesting to me they are aware of the anguish caused by
these rules], including those who are in no way to blame for the situation
which they now find themselves in, does not mean that it is unlawful – despite
also saying that while the MIR doesn’t prevent a couple marrying it does
prevent them from enjoying family life together.
Despite that ‘MIR may constitute a permanent impediment to many couples’, it is part of a
strategy to reduce net migration and ensure the couple do not have recourse to
welfare benefits and can integrate. And
these aims are sufficient to justify the interference with, and the lack of
respect for, the right to a family life.
Joy.
Worse, the MAC report is practically
praised. And I don’t know if I am being
dim here, but the MAC report recommended an income threshold of £18,600 as the
household income…a two person income. Why then impose this requirement on one
person alone?!
So the judges rule that the
principle of the MIR is lawful. Which is
fine - it’s the level which has been an issue, so much higher than minimum wage.
But I’m not sure that is covered by this judgment. Is there anything to stop the HO from
increasing the MIR?
Treatment of children
The judges find that best interest
of children is not treated as a primary consideration. Instead, current practice is that the foreign
parent is only where there presence is the only means of alleviating the
hardship caused to the child e.g. for a major medical procedure or prevention
of abandonment. The judges state that
they have no doubt this approach is defective, deeming both the rules and the
guidance as unlawful.
Treatment of alternative sources of
funding
MAC report is once again cited, as
it mentioned including third party support and the future income of the spouse,
given it is total household income which determines eligibility of even the
British citizen to welfare. That the
Home Office did not take up MAC’s offer to consider how the £18,600 could be
adjusted is a huge boon for families, as there may be pressure on the
government to now do so. I am however bemused at the reference to third party support in the form of accommodation being taken into account though, as the MIR is not reduced to reflect 'free' accommodation.
The court re-iterates what has been
said in the House of Lords – that third party support may be more dependable
than employment.
However, not allowing for
alternative means of funding like third party support in the rules is
acceptable, as this makes for rules which are simpler and easier to apply. Outside of the rules though is another matter
as the Human Rights Act requires looking at the circumstances underlying each application. But the Supreme Court deems that judges at
tribunals can assess the reliability of alternative sources of funding, even
where caseworkers do not.
Supreme Court says the guidance
should make clear that a broader approach may be required to assess whether the
government’s objectives of ensuring no burden on taxpayer and integration can
be met by other reliable sources of funds.
Although, whatever the rules and guidance say on this, nothing precludes
the tribunal from allowing for them.
What constitutes reliable is a
matter for the government to decide, and whether they do this through the rules
or guidance is up to the government.
What
now?
The Home Office will make written
submissions to the Supreme Court for the changes being proposed as a result of this
judgment, and the Court will then consider whether a further hearing is
necessary. I’m told by a member of the
legal team that the Home Office has 56 days to action this.
We know the rules and guidance must
be amended to take into account the best interest of children.
Amendments will need to be made to ensure
alternative means of funding where the source is reliable as deemed by the Home
Office are taken into account, though how this is done, and what constitutes
reliable, is up to the government.
The MIR remains, and remains at
£18,600+. Bummer. Can the government even increase this? If
they do so, I suspect it will not be part of their submissions! However, it may be tough for the to increase
the requirement to a threshold which is higher than that which would disqualify
a British citizen from claiming income-related benefits, given their rationale
for the threshold.
I am concerned that whatever positive
changes the Home Office make on the back of this judgment, caseworkers will
continue to apply them unlawfully. I have serious reservations about so many families
still being forced to rely on tribunals to right wrongs, when the tribunal path
is neither quick nor cheap. I am worried
about the families who will still not be able to be together because of the
rules, couples who are prevented from having children because they are living in
different countries, and indeed, some who accelerate having kids just to be
together in the same country.
It may be that significant change will
now only come from parliament rather than courts, and thus I urge all of you to
make the most of media opportunities to voice how damaging these rules are,
write to your local newspapers, lobby your MP, name and shame them if they do
not represent you. With each day, the
number of British citizens caught up in these rules will only increase as more
and more fall in love with someone without factoring in the colour of their passports.
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