BRITCITS OVERVIEW OF MMCASE SUPREME COURT JUDGMENT

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

The first point above makes it clear that the HO intends for British citizen to pay a penalty for falling in love with a foreigner, whereby they must give up their own right to claim benefits, to have their partner with them.  The second point unfortunately works in the HO’s favour, as part of their strategy.  The third point – well, how can public confidence in the immigration system be restored when since 2010 the Home Office spend on immigration fees has seen a steep rise, coupled with a staggering percentage of refusals being overturned on review or appeal.

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.