Family migration revisited

The High Court in the case of MM v Secretary of State for the Home Department [2013] EWHC 1900 (Admin), heard in February 2013 and promulgated on 5 July 2013, fell short of striking down the Immigration Rules in relation to minimum income, but ruled the provisions disproportionate and unjustified.

In a previous article (“Family migration”), I wrote:

“On 9 July 2012 they are introducing new rules which they claim will strike the ‘correct balance’, making clear when the public interest in preventing someone from entering or remaining in the UK should outweigh individual rights to family and private life.

“The key changes are:

“A minimum income threshold of £18,600 will apply to those who wish to sponsor the settlement of a spouse or partner in the UK. A higher threshold will be required for the additional sponsorship of migrant children under the age of 18: £22,400 for one child and an additional £2,400 for each further child sponsored before the migrant parent achieves settlement.”

The editor’s summary read: “New rules affecting family migration are intended to restrict the number of non-EU immigrants to the UK, but in the author’s view could operate unfairly”.

And indeed almost exactly a year after the rules were first introduced, Mr Justice Blake sitting in the High Court has in a lengthy, complex and very carefully considered judgment found that the controversial immigration rules requiring a minimum income of at least £18,600 for spouse visa applications are “unjustified and disproportionate” where the sponsor is a refugee or a British citizen.

Rights denied

At para 126 Blake J holds:

“… to set the figure significantly higher than even the £13,400 gross annual wage [identified by the Migration Advisory Committee as the lowest maintenance threshold under the benefits and net fiscal approach, and close to the adult minimum wage for a 40 hour week] effectively denies young people and many thousands of low-wage earners in full time employment the ability to be joined by their non-EEA spouses from abroad unless they happen to have wealthy relatives or to have won the lottery. This frustrates the right of refugees and British citizens to live with their chosen partner and found a family unless such modest earnings could be supplemented by any reasonably substantial savings, third party support or the future earnings of the spouse seeking admission. The executive can hardly be heard to say that the minimum adult wage is a manifestly inadequate sum to provide a basic standard of living over the subsistence threshold for a household without dependent children”.

Blake J also observes that British citizens have a fundamental right of constitutional significance recognised by the common law to live in their home country, but that for many applicants (estimated at around half the British population, in fact), if they wish to marry and live with a foreigner, the rules require them to leave their own country. The consequences of this are considered by the court to be so excessive in impact as to be beyond reasonable means of giving effect to the legitimate aim behind the new rules.

Equally, recognised refugees who have been forced to leave their own country have not “chosen” to live in the UK and make it their country of residence. To force a refugee to make a choice between marrying their partner of choice or leaving their country of refuge is simply unreasonable.

At paras 123 and 124 the court states:

“I conclude that when applied to either recognised refugees or British citizens the combination of more than one of the following five features of the rules to be so onerous in effect as to be an unjustified and disproportionate interference with a genuine spousal relationship”. The five features are:

(i) The setting of the minimum income level to be provided by the sponsor at above the £13,400 level referred to above. Further, the claimants had shown through their experts that of the 422 occupations listed in the 2011 UK Earnings Index, only 301 were above the £18,600 threshold.

(ii) The requirement of £16,000 before savings can be said to contribute to rectify an income shortfall.

(iii) The use of a 30 month period for forward income projection, as opposed to a 12 month period that could be applied in a borderline case of ability to maintain.

(iv) The disregard of even credible and reliable evidence of undertakings of third party support effected by deed and supported by evidence of ability to fund.

(v) The disregard of the spouse’s own earning capacity during the 30 month period of initial entry.

At para 128 Blake J deals rather neatly with the argument that the level of income specified in the rules was derived from advice from the Government’s Migration Advisory Committee:

“The Migration Advisory Committee were clear in their advice that they were providing statistics about the level at which any family would have no recourse to means tested benefits of any kind. They were thus professionals in ‘the dismal science’ of economics and not making an assessment of when it would be justified to prevent a British citizen or refugee from being joined by a spouse on economic grounds alone. Their economic advice cannot provide a sufficient justification for the terms in which the policy is set.”

Limitations on effect

The court rejected the argument that the new rules were discriminatory, and declined to strike down the rules as generally unlawful. The judgment is in theory only concerned with the direct impact on the particular claimants in this case. It is not concerned with the principle that a specific minimum income rule is potentially lawful, and it certainly does not open the door to those without means to sponsor spouses and children to come to the UK and claim public funds.

Although the court did not strike down the rules as such, its declaratory judgment is potentially a green light to foreign spouses who previously thought they had no prospect of being allowed to live together with their spouses in the UK, to succeed under article 8 of the European Convention on Human Rights even though they cannot satisfy the harsh requirements of the rules. The court suggested under para 147 of the judgment a variety of less intrusive responses available:

• reducing the minimum income required of the sponsor alone to £13,500, or thereabouts;
• permitting any savings over the £1,000 that may be spent on processing the application itself, to be used to supplement the income figure;
• permitting account to be taken of the earning capacity of the spouse after entry, or the satisfactorily supported maintenance undertakings of third parties;
• reducing to 12 months the period for which the pre-estimate of financial viability is assessed.

So, any new case has a higher chance of success than previously, if: there is evidence that the UK sponsoring spouse earns above the national minimum wage; or there is reliable “third party support”; or there is reliable evidence that the foreign spouse or partner will be working in the UK; or where children are likely to be affected so that it is not in their best interests for the foreign spouse to be refused entry.

Government moves?

The judgment will be welcomed by the thousands of British and refugee families separated by these severe rules. However the Home Office has now initiated an appeal. The decision might have been welcomed by the Government, considering the growing criticism in the local and national media – look tough on immigration, blame the judges, escape the consequences of the policy, and avoid the embarrassment of a climbdown.

Many applicants – British citizens or refugees – earn enough money to avoid resorting to public funds, but not enough to meet the £18,600 rule for a sponsor’s earnings. This judgment offers hope that they will soon be able to live with their loved ones in the United Kingdom.