MM & Others [2013] EWHC 1900 (Admin): A step toward reuniting the families Theresa May seems determined to pull apart

border2-thumbnailby Joseph Markus

Contrary to what the BBC has been reporting (it’s now fixed it), the High Court on Friday 5 July upheld claims that aspects of the new Immigration Rules – contained in an Appendix FM to the Rules – fell foul of Article 8 of the European Convention on Human Rights.

In particular, what Mr Justice Blake decided, in a long and detailed judgment, was that the range of new financial requirements for spouses coming to join their partners in the UK (who in this case were either refugees or British citizens) were more than was necessary for the legitimate end of managing migration.

Those financial requirements – inflated significantly from the pre-July 2012 regime – required:

–  The capacity for the British or refugee sponsor (“the sponsor”) to be able to show gross annual earnings of £18,600.

–  Any earnings can be supplemented by savings, but only savings above £16,000 count. If relying on savings, to equate to the earnings threshold, those savings must have a value of 2.5 times that of earnings (i.e. a person relying only on savings must have a bank balance of £62,500).

– The combined effect of these two requirements is that essentially no-one who claims any sort of benefit will be able to meet the requirements. The thresholds are deliberately set at a level at which benefits cannot be awarded. (There are some very limited exceptions to this, but, as I say, they are very limited.)

–  Earnings or savings must all be shown upfront and are re-assessed twice at 2.5 yearly intervals before the applicant can settle permanently.

–  In order to meet the financial requirement, applicants are not permitted to rely on promises of third-party support (i.e. from a generous uncle or parent, no matter how rich and however reliable they may). (This, it is worth highlighting, is contrary to the previous position, where the Supreme Court in Mahad [2009] UKSC 16 considered that third-party support was perfectly permissible.)

–  In contrast to the previous position, applicants can no longer rely on future earning capacity – in the sense of job offers.

–  All of this is subject to especially strict evidential requirements set out in the rather elegantly named Appendix FM-SE. If even a single piece of evidence is missing or incorrect, untranslated or photocopied, the Home Office will refuse the application – subject to very limited and opaque, discretion-based exceptions. (Anyone who manages to read their way to the end of that Appendix will immediately recognise the difficulties it poses, even to those who can speak English natively.)

The judge decided that all these requirements taken together intruded – significantly more than did the “colossal” interference that was the subject of the Supreme Court decision in Quila [2011] UKSC 45 (concerning restrictions on bringing young, over-18 spouses into the UK) – into a couple’s family life in a way which, in combination, was unjustified and disproportionate.

The judgment is worth reading, at least in part, if only for the sheer number of shocking statistics prepared by the claimant’s lawyers and reflected in the decision.

One, in particular, is that around 45% of applicants who entered the UK under the previous policy would now be turned away.

Another is that of the 422 jobs listed in the UK Earnings Index, 121 have earnings listed below the financial threshold.

Especially depressing is that someone working 40 hours a week on the national minimum wage would earn slightly more than £13,000 – way below the current lower limit. It is distinctly odd that Theresa May opted to set the threshold so much higher than the apparently acceptable minimum wage for UK workers.

Lastly, there is the extreme disjuncture between the way in which the partners of EEA nationals are treated. For them the only real hurdle is demonstrating that they are exercising “Treaty rights”, i.e. either in-work, self-employed, a student or “self-sufficient”. It means that EU citizens of other countries – such as France – who come to the UK are in a better position than British citizens who, because of their citizenship, are not exercising Treaty rights.

What this means for immigration law and policy at this point is not entirely clear. The Home Office has announced a “pause” on deciding applications where the applicant would not meet the financial requirements of the rules at present. With luck, the “pause”, rather than an immediately expressed intention to appeal, suggests that the Home Office will engage and try to implement the decision. The decision leaves open the prospect of the judges reviewing again whatever the Home Office comes up with – the judge opted not to take a final view on where the financial threshold might lawfully be set.

Theresa-May_1716248cThe decision is only going to exacerbate Ms May’s frustration with the judges. Her previous suggestion was that the judges – Mr Justice Blake, then President of the Upper Tribunal (Immigration and Asylum Chamber), in particular – were intent on subverting the very fabric of democracy. That rather outlandish belief is only going to be compounded by this decision from, in her eyes, the “ringleader”.

At any rate, at present the Home Office is focussing on the positives. Justice Blake did not say that a minimum income threshold could never be justified – only that the level at which it was set, along with all the other restrictions, could not be justified.

UKBA_250313The judgment carefully delineated the goals of the new rules, accepting that they were, in principle, legitimate ones. The new rules introduced on 9 July 2012 had a number of aims, which come clear in the witness statement submitted to the High Court by Clive Peckover, the Home Office Head of Family Migration Policy. The two primary reasons given for increasing the financial threshold were that the Home Secretary wanted to avoid benefit dependency and wished to encourage integration – which she imagined would occur where couples made more than subsistence wages.

In the background, however, was the perceived necessity to be seen as being tough on migration. Mr Peckover mentions the policy mandate to cut net migration from the 100,000s to the 10,000s. Given the limited scope for cutting in the area of EEA migration, it seems fairly clear that the financial threshold was intended to cut the numbers of migrants coming to the UK to join their partners. This motive was glossed over in the judgment.

Because of that, it may be that Ms May intends – as she mentioned earlier – to enshrine the new rules within primary legislation, thus sidestepping the point raised by the judges that there has been only limited parliamentary oversight to date. This could raise the spectre of a larger constitutional clash between the executive and judges, as politicians seek earnestly to slash migration in the belief / fantasy that “this is what voters want”.

Whatever happens, this is a good decision, produced by a judge who is a leading specialist in this difficult area of law. Families previously separated by the unprecedentedly stringent terms of the policy can now hope to be reunited. A good result.

  1. John D said:

    Apparently, these provisions are already being circumvented by those “in the know” by both partners going to another EU country, such as Ireland, where they live and work for a period of time, before “returning” to the UK and claiming admission on the basis of their joint EU status. Simple – provided you both don’t mind having probably to work in a fairly low paid temporary job for between 3 and 6 months in a country where unemployment is already high. But it gets you both in on an indefinite basis.

    • josephmarkus said:

      Yes, the “Surinder Singh” route. If anything, just goes to show the nastiness of the Appendix FM rules (if, at least, you would like most part-British couples to be re-united).

      Doesn’t work for refugees though.

      • senex72 said:

        Interesting: As a matter of interest,how do May’s proposals stand compared to similar requirements for entry to USA or Australia? Does anyone know?

      • josephmarkus said:

        I do know that they’re the strictest (or so) in Europe, primarily because of an EU measure to which we’ve failed to opt in.

        Not sure about the others..

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