High Court challenge of the ADR rules

UPDATE: Approved judgment is now available here.  Reading it I realise in some parts my hearing was a little selective, and so minor edits have been made to the below to reflect the content of the judgment where my memory doesn't quite square with reality.
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As many of you will know, BritCits took everyone’s favourite politician to court over the Adult Dependant Relative part of the family immigration rules in force since 9th July 2012.  This was a two day hearing on Tuesday 19th April and Wednesday 20th April at the High Court, in front of Mr Justice Mitting.

We lost the case, but it's not as bad as it sounds. I know, I know.  Mine was the same reaction when the lawyers were reassuring me that the loss was in the best way possible.  Like me, you'd probably have taken a win instead, albeit in the worst way possible.  But we play the cards we are dealt and I think the lawyers are not wrong.  You'll see why below. 

Thank you to all those who attended any part of the hearing - your taking the time out, including annual leave, to be at the hearing helps reinforce the message even to the judge that there are people around who care about these rules, that we have family members we want to be with.  

Note, I’m not a lawyer and combined with a reasonably short concentration span is huge interest in this issue, so the below may well have some errors, will definitely miss out on quite a bit that was discussed, either because the arguments were beyond me or because it was so gripping I was too involved in the hearing to take notes.

The judge did not appear to have any issue with the claimant (us) being an NGO as opposed to a family refused an ADR visa, despite attempts by the HO to sway the judge - he appreciated the detrimental impact of an ADR refusal on even visit visas.

  

Those who spoke at the hearing:

NL – Nathalie Lieven QC (our lawyer) – Landmark Chambers

NS – Neil Sheldon (HO’s lawyer)

Our immense gratitude to Nathalie, and also to Sonal Ghelani and Daniel Rourke, of Migrants' Law Project, and Duran Seddon of Garden Court Chambers.

What's the issue?

Before 9th July 2012, British citizens who wished to sponsor a parent over the age of 65, would have to show the parent was financially dependent on them, and that the sponsor had the means to look after and accommodate their parent, without recourse to public funds.  For elderly parents who were wealthy, and thus not dependent on their British children, there was scope for them to move to the UK as Retired People of Independent Means.  This route too had been closed off.

The only condition earlier, was financial; families were allowed to be together as long as they were not going to be a strain on the taxpayer.  Fair enough.

However, since 9th July 2012 the HO deems that only those who have trouble bathing, dressing or cooking for themselves will be allowed into the UK, and even then only if, the British sponsor can afford to look after them in the UK, but they and their elderly parent cannot obtain care in the parent’s home country, even with the help of any social care, either because it is not available or unaffordable.  

Given most countries will have a cost of living lower than the UK, or those where it is comparable are likely to have social care, I still think the chance of satisfying the criteria is nigh on impossible.  It is ironic given that in the hearing the HO’s entire justification for these rules boiled down to saving the NHS money, they only allow in people who are guaranteed to need a huge amount of medical and social care assistance!

The hearing

Started promptly at 10:30 am on the first day, and at the judge’s request, at 10am the next.  

No anonymity order was made and it was agreed we would rely on the judge's discretion to not divulge personal details of families in the judgment.   There were three grounds that we had put forward as to the illegality of the ADR rules.

1) Immigration Act 1971 requires there 'shall be provision' for dependants.  The rules as they are effectively a ban - and the judge did quote former MP, Sarah Teather who referred to the rules as a 'ban masquerading as a rule' and the APPG on migration report, which said the rules for ADR were 'all but closed'.

Judge seemed very interested in the background behind the IA 1971, including the white paper...he had only been able to locate one from 1965, but nothing more recent than that.  This no doubt made for a busy evening for paralegals in the barrister’s chambers.  The judge did ask where the line should be drawn – for some dependants may mean dependent servants in the country of origin, as the IA doesn’t specify the nature of the dependants.

2) Manshoora Begum – this was a case where it was found unlawful to have rules that discriminated against those living in countries with a lower cost of living than the UK.  One of our arguments was that dependency between parents and children (albeit they are adults now) is beyond financial, it was also social and emotional.  The judge pointed out however that even the pre-2012 rules required financial dependency.

3) Article 8 – the right to private and family life.

The desire to live with and look after elderly relatives.

Judge said he had read all the witness statements, including those from three leading law firms who stated they advised their clients against making an ADR application because it was clear the rules could not be met and that from families; including one from a British citizen living in exile as moving to the UK would mean not being able to sponsor elderly relatives, another a British doctor in the UK whose wife is of English descent, with no ties to the country her in-laws live in, for whom thus relocating abroad is not feasible. 

Justice Mitting seemed keen to explore the drop in grants from around 2000-3000 before the rule change, to 70 (a provisional figure – HO just doesn’t know) in 2014, using the term ‘de minimis’. Despite our asking the HO, we do not have a breakdown of the grants by whether granted within the rules or outside, and by ECO, ECM or tribunal.

Our lawyer pointed out that the sponsors were all law-abiding and skilled citizens – exactly the kind UK would want to attract and retain, and that many would not have moved to the UK had they been aware of rules such as this.  The judge clarified that surely this wasn’t a legitimate expectations challenge, given the immigration rules are subject to change and NL agreed with that, but said it was ‘familial expectation’ as ADR were an integral part of family life.  Also mentioned was our being told by MPs such as Jeremy Hunt that we should learn from Asian cultures in looking after elderly – that the government sets out standards it wants to encourage, yet effectively bars people from doing so.

We cited BMA evidence that over 25% of doctors received their qualifications from outside the EEA and that there was nothing to show the HO had considered lesser alternatives – like private health insurance, a bond or even a minimum income requirement, as was applied to spouses.

The HO response here really peeved me, because they said a MIR would have been contested because of the discrimination against women, those living in certain regions and the less well-off.  How therefore could they justify this for British citizens with foreign spouses, or minor British children with a foreign parent?!  The very same MAC report relied on by the HO for the imposition of an income requirement as per the #MMcase also mentioned an income threshold (much higher than £18600) for ADR.  

It was mentioned that PHI may be quite expensive, however I don’t think any explanation was provided as to why the HO didn’t opt for a bond which could be drawn upon were NHS to be used. 

NS said the rules had been preceded by an extensive consultation, and that the overarching theme of change was to stop abuse and reduce the burden on taxpayers.  He picked and chose a couple of questions from the consultation document to try and support the changes (though I don’t think even these really helped), ignoring the many other questions which made it obvious that the response for the most part was not in support of changes as made.

When the judge mentioned the objective was to remove the routine expectation of settlement for ADR once they reach 65, NS seemed to say no that wasn’t the objective, although the judge did not accept this, citing what he had read in some HO documents, and also mentioning this objective in the judgment.

Moving on to the Policy and Equality Statement, and Statement of Intent, NS said the rules are Article 8 compliant and families can always appeal.  The judge called that a ‘hopeless argument’ and I think said that cannot justify the rules by saying can circumvent it.  NS however said there was no single case in Strasbourg where the ECHR had held that refusal to permit an ADR breached Article 8.

NS said that it was only the success in Quila that created hopes for the English Language Test (Bibi), the MIR (MM case) and now ADR, to which the judge said well it was really because the rules were much more restrictive.

The costs justification fell apart completely, and NS had to concede following some manual calculations undertaken by the judge that the Impact Assessment was flawed, and the assumptions underlying it not realistic.  The judge said the rules saving the UK money did not mean they were proportionate if another less intrusive method could have been adopted.

The first day was very strong for families, whereas the second day there was just too much of the judge nodding along to arguments put forward by NS.  I suspect Justice Mitting had already made up his mind by then on the case, and how high he felt he had authority to go.

The judgment

It was expected that the judgment would be a few months down the line, maybe even after the Supreme Court judgment in Bibi and MM. 

However, when on the second day just before lunch time NL at the end of her submissions asked whether she could respond to some new evidence submitted by NS just that morning within the next 24 hours, the judge said no.  He said he would in his judgment only consider what had been presented at the hearing. 

It became clear why, when he announced he was going to hand down the judgment at 3:30pm that very day!  An ex-tempore judgment which led to a number of jaws dropping. 

The delivery of the judgment took nearly an hour, starting off with the judge quoting from s1(4) of IA 1971, setting out what the pre July 2012 rules were and what the new ones are.  So we were kept in suspense, although when the judge started saying some things in our favour, I knew there was going to be a ‘however’.  L

Justice Mitting mentioned the figures: In the year 2010-11, 2325 ADR visas were granted (figure from 13 June 2011 PES, though figures in the Impact Assessment were slightly different), dropping to 70 in 2014, of which 37 were granted on application and 33 on review or appeal.

The new rules were subject to a negative resolution procedure (something Labour didn’t take up when they should have done) and there was no dissent in the House of Lords. è here I guess supporting the HO claim that the rules did go through proper parliamentary procedure.

Although the justifications behind the rules was presented as stopping abuse, promoting integration and reducing the burden on taxpayers, the judge quoted from Clive Peckover’s statement on behalf of the HO which indicated primary consideration was given to the impact of the new rules on the taxpayer and NHS in particular - if the rules resulted in a reduction in net migration then this was welcome, though not the primary objective. (Pah!)

The table of savings in the impact assessment was once again mentioned with the judge saying he was ‘baffled by the economics’ behind the HO analysis, which indicated a net saving of £10m over ten years, though with a drop of 97% the saving would be higher, even allowing for the fall in fee revenue.  However, no exercise was undertaken by the HO to value the loss to the UK from the departure of British citizens leaving the country in order to live with their ADR.

The judge commented on the consistent evidence from three reputable lawyers and the APPG report, that the ADR route was ‘all but closed’, and that if the UKBA figures were right, this meant that applications now were 23% of that before the change, and grants only 3%.

On our Ground 1, the judge considered what aims of the statute were being pursued.  He quoted Lord Dyson and said that parliament imposes no obligation on the SoS to allow in everyone; she can pick and choose, even if this means limiting the category of dependants to a sub-category.  I didn’t quite get this because he also quoted from instructions issued to caseworkers in 1970 which provided for admission of widowed parents at any age, and elderly parents above 65 where those involved were Commonwealth citizens, or the same for ‘Aliens’ but with the age reduced to 60.  No one could explain why the difference, especially with aliens apparently being treated more generously.

Judge declared ‘the challenge on the ultra-vires/Padfield challenge fails’.  

Moving on to the other two grounds; he said there is a common law duty on the SoS to not accommodate discrimination e.g. Manshoora Begum.  He said the rules as they now are ‘exceptionally difficult but not impossible’.  However, quoted from Huang in saying ‘humans are social animals...’

He said while it was not necessary to set out the details from witness statements given it was personal info being dealt with discretion, the statements were taken into account in his judgment.

He agreed that the new rules were ‘certain to interfere with the family life’ of the frail and elderly parents, as well as a significant number of British citizen sponsors, and their spouses and children in the UK. How?

·      Ability of the ADR to interact with the sponsors - children, grandchildren, and vice-versa

·      The right of the sponsor and family to provide physical and emotional support to the ADR, and for the ADR to receive this from family, not strangers

By limiting the leave to only those who need personal care, family life was being interfered with for elderly who are fit.  He went on to say that it was unsurprising in the three First Tier Tribunal cases shared with him, the judge had concluded family life did exist and that a refusal would interfere in a significant way.  In Justice Mitting’s view, these conclusions were likely to be replicated in many cases.

The question thus was, under Article 8 is this interference proportionate?

He applied the proportionality test, asking whether a fair balance had been achieved, including

1. Was the objective sufficiently important to justify interference
2. Were the rules rationally connected to the objective
3. Were lesser alternatives available to achieve the same objective

Lord Neuberger from Bibi (2015) was quoted and Justice Mitting stated that the ‘ADR rule is not reasonable to impose’, because

•  It has had a much heavier impact on families than was suggested to Parliament.  Theresa May did not say it would lead to a 97% drop in ADR grants!
• If a financial measure was adopted for savings, HO failed to take account of the loss from sponsors leaving the UK.
• Alternative methods to reduce the burden on taxpayers, such as private health insurance or a bond (as is the case in other s38 cases – I have no idea what this is) were not considered.

Therefore, the judge said ‘Free of authority, therefore, I would not have hesitated to consider the lawfulness on the ground of proportionality of the rule and, if I had found it to be disproportionate and so unlawful, to declare it so.  However, I believe that I am bound by authority to do otherwise.’  (I was totally like whaaaaat, no you’re not bound, you're not bound!)

He referred to something Justice Aikens said in the #MMcase at the Court of Appeal, and paragraph 69 of Bibi:

“ 69. For the reasons which I discuss below, I think that there may be a number of cases in which the operation of the Rule in terms of the current guidance will not strike a fair balance. But there may also be many cases in which it will. The court would not entitled to strike down the Rule unless satisfied that it was incapable of being operated in a proportionate way and so was inherently unjustified in all or nearly all cases: R (MM (Lebanon)) v Secretary of State for the Home Department [2015] 1 WLR 1073, paras 133 and 134 per Aikens LJ. As a result, the appellants fail to show that the rule itself is an unjustifiable interference with article 8 rights.”

The judge went on to say something about how he could get around this, but that it was not for a High Court judge to get around Court of Appeal...and so the ‘Article 8 challenge too fails….claim dismissed’. And the hearts of all but four people (HO legal team) in that courtroom broke.

However, what followed was more positive. We were immediately given permission to appeal nad when our lawyer stood up to discuss the costs BritCits must pay the Home Office, the judge interrupted to say ‘but you will want a stay on the costs order pending the appeal’. 

Normally to appeal my understanding is that you must first obtain permission, which requires oral or written submissions– however the judge granted us permission without requiring any such submissions needed.

So why do I think this judgment, though not in our favour isn’t all that bad?

• We have already been given permission to appeal by the same judge who ruled against us – he himself sees merit in the case going further. 
• If the judge felt he was not authorised to deem the rules unlawful, better he tell us straight away than months down the line.  While perhaps he could have waited for the Supreme Court judgment which would overrule the Court of Appeal judgment he had cited feeling unable to go against, what would that have achieved? Even if the SC judgment may have worked in our favour and allowed Justice Mitting to deem the rules unlawful, Home Office would have appealed further anyway and we’d just be delaying the whole process by another a few months.
• My understanding is that Justice Mitting is known for being more conservative than liberal - so if a conservative judge agrees the rules are not proportional, that may well carry more weight at the appeal.  Yes a conservative judge ruling in our favour would carry even more weight, but, I think the proportionality comments he made are very helpful.
• This judgment, once publicly available, should help families whose applications are at FtT, because reference can be made to a High Court judge questioning the proportionality of the rules