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Public law and Regulation

Case reports and guidance on public law and professional regulation issues

28 AUG 2013

R (on the application of MM) v The Secretary of State for the Home Department [2013] EWHC 1900 (Admin); (2013) PLLR 103

Immigration - Finances - Article 8 - Discrimination

The numerous and strict criteria necessary to gain leave for a British citizen's non-EEA national spouse rendered the relevant Immigration Rules a disproportionate interference with the affected persons right to enjoy respect for their private and family life.

5 July 2013

Administrative Court

Blake HJ

(1)        These applications concerned amendments to the Immigration Rules laid by the Secretary of State before Parliament in June 2012.

(2)        The first Claimant, MM, is a national of Lebanon who entered the UK in 2001. He was granted limited leave to remain until 28 January 2014. The problem he faced was that the amended Immigration Rules impose a mandatory financial requirement on the admission of a spouse to be met by the sponsor of a minimum income of £18,600. MM was unable to meet that threshold, so his wife was not permitted entry to the UK.

(3)        MM complained that the Immigration Rules prevented the couple from being able to rely on his wife's earning capacity if she applied for entry clearance. Further, the Rules did not allow the couple to rely on a deed of covenant provided by the Claimant's brother stating that he would provide £80 per week for five years. 

(4)        Until July 2012, the only requirement by the Immigration Rules was that admission would not lead to additional recourse to public funds and the couple would be adequately accommodated. 

(5)        MM has a nephew, AF. It was argued that the Immigration Rules failed to have due regard to the statutory duty to have regard for the welfare of a child (as per section 55 Borders Citizenship and Immigration Act 2009). 

(6)        The second Claimant, Mr Majid, is a British citizen of Pakistani origins. His wife is a Pakistani woman who lives in Kashmir who has been refused entry clearance as a spouse in 2002, 2006 and 2010. In 2012, she was refused entry as a visitor.

(7)        Mr Majid was out of work, but believed that his employment prospects would be improved if his wife were admitted and were able to look after their children. Mr Majid contended that his relatives were willing to provide him and his wife with financial support until they were self-sufficient.

(8)        Mr Majid's essential complaint was that the rules providing for admission of children settled in the UK for 7 years did not apply to parents who also sought to enter as spouses.

(9)        The third Claimant, Ms Javed, is a female British citizen of Pakistani origins. On 4 May 2012, she married a Pakistan national who lived and worked in Pakistan. Ms Javed was unable to sponsor him to come to the UK because she was unemployed and without employment prospects.

(10)     Ms Javed complained about the same provisions as the first Claimant, but also about the requirement to provide six months continuous wage slips with the same employer. She contended that this was unnecessarily onerous and unduly harsh towards those with casual employment records.

(11)     Ms Javed contended that the whole financial sponsorship scheme unjustifiably discriminated against women, particularly British Asian women, as this segment of society suffers from significantly lower rates of pay that others, in particular men.

(12)     HELD: The Court stated that it was well-established that the Immigration Rules were not primary or delegated legislation, but a statement of the Secretary of State's policy.

(13)     Since 1973, it had been well-established that those wishing to sponsor the admission of a spouse are required to satisfy the Entry Clearance Officer that the spouse can be maintained without recourse to public funds. The maintenance and accommodation need to be provided at a level which can objectively be called adequate, not merely at a level that is tolerable to the parties and their family.

(14)     The Court rejected the argument that the failure to make an exception to the rules rendered them disproportionate in relation to article 8 ECHR. Further, it has been commonly accepted by the Courts, that ‘bright line' runes are acceptable, despite the fact that they can cause some hardship.

(15)     The Court indicated that it would be slow to require special treatment for a group where it would affect the distribution of national resources. Given the great uncertainty as to when exceptions would be called for, there was reinforced justification for a bright line rule.

(16)     This was not a case of targeted discrimination, which is an important factor in deciding whether potential discrimination is justified.

(17)     The Secretary of State introduced the rules, knowing that they would produce a particular result, but without empirical proof prior to its introduction. Given that this was a rational belief, it was appropriate that the State be afforded a margin of appreciation in relation to the formulation of social policy.

(18)     There was no doubt that the changes to the maintenance requirements in the Immigration Rules constituted a significance interference with the ability of a couple to live together in the UK. The question was whether the interference was for a legitimate aim and was proportionate and justified.

(19)     The Court emphasised that the Strasbourg Court had made clear that the right to marry does not carry with it a right to respect for choice of matrimonial homes. The Court emphasised that British nationality was important, because if the spouse could not obtain admission, and the citizen sponsor wanted to enjoy family life following marriage, he or she would have to leave their country of nationality in order to do so. The administrative measures preventing cohabitation thus interfered with the British citizen's rights as much as that of the foreign national and the scale of this interference was acknowledged to be very significant.

(20)     The Court considered that the measures served a legitimate aim and were rationally connected with that aim. The Secretary of State was entitled to conclude that economic and social welfare is promoted by measures requiring spouses to be maintained at higher levels than the basic level set by previous interpretations of the rules, and the judgment was one which the Secretary of State was entitled to make based on the extensive data available to her.

(21)     Similarly, the Court held that none of the Claimants grounds as to unlawful discrimination succeeded. The rule was an economic and immigration policy falling into a broad discretionary area of judgment afforded to the Secretary of State. It was important for the Courts to respect the wide margin of appreciation in this regard, especially given the extensive consultation and high degree of Parliamentary scrutiny afforded to these measures. 

(22)     The differential impact upon male and female migrants had been sufficiently noted in the equality impact assessments for due regard to have been paid to this factor. To make provision for such a difference would be impractical and inappropriate.

(23)     The Court made clear that to require additional income to be evidenced where a sponsor was seeking to bring both his wife and dependent children into the UK was not unlawful. It reflected the fact that a minimum income requirement is inappropriate where it is in the interests of the child that they be admitted to join a parent or carer and there is no additional recourse to public funds.

(24)     The Court found that when the Immigration Rules were applied to recognised refugees or British citizens and combined with certain other requirements, the consequences were so excessive that they exceeded that which could be a reasonable means of achieving a legitimate aim.

(25)     These certain factors included the requirement of £16,000 savings before the savings could contribute towards an income shortfall; the use of a 30 month rather than 12 month income projection to be applied to borderline cases; the disregarding of credible evidence of third party support; and the disregarding of the spouse's earning capacity.

(26)     Setting the income figure higher than the gross annual wage denied many low-wage earners the ability to be joined by their non-EEA spouses. The Court stated that although third party support could not be guaranteed to be delivered upon, the knowledge that there would be checks after a year would be an incentive for such support to be delivered.

(27)     It was irrational and manifestly disproportionate to fail to have regard to the future earning capacity of a spouse. The argument that the new rule is transparent and assists with ease of assessment was acknowledged to be reasonable. However, it was not reasonable if it came at too high a price in terms of family re-union. Transparency was said to be best achieved by clarity in relation to the documents required to demonstrate the relevant facts, rather than a rule preventing the receipt of data that might be both sufficient and reliable.

(28)     The Court thus concluded in stating that encouraging migrants, through the terms of admission, not to live at or near the subsistence level was a legitimate aim. However, the combination of features arising from these rules constituted a disproportionate interference with the rights of British citizen sponsors and refugees to enjoy respect for their family life.

(29)     The Secretary of State was not justified in determining herself to be bound by the relevant Immigration Rules in all cases of entry clearance by spouses of British citizens or refugees. Further, the restriction was disproportionate.

(30)     The Court held that it was for the Secretary of State to adjust the rules if she saw fit. The Court emphasised that this case had been conducted at such a level of abstraction, that no conclusions could be drawn as to whether the rights of each of the Claimants had been breached.

(31)     The Court concluded that it was not appropriate to strike down the financial requirements. Neither did it dismiss the claims as lacking in merit, stating that there appeared to be substantial merit too the claim that there had been disproportionate and unlawful interference with the family life of each of the Claimants.     

Claim succeeded

Key Paragraphs

[39] - Status immigration rules.

[47] - Maintenance adequate.

[64] - Not disproportionate.

[66] - Bright line.

[70] - Not targeted discrimination.

[82] - Wide margin of appreciation. 

[94] - Conclusions.

[101] - No right choose matrimonial home.

[104] - Nationality important.

[110] - Legitimate aim.

[112] - No unlawful discrimination.

[114] - Difference in treatment.

[116] - Additional funding child. 

[124] - Factors outside legitimate aim.

[136] - Third party payments.

[137] - Earning capacity spouse.

[140] - Transparency.

[142] - Summary of conclusions.

[148] - Secretary of State adjust rules.

[151] - Abstract judgment.

[154]-[155] - Conclusion.

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