For families divided by Home Office income requirements, the latest case on the human right to family life offers mixed results. While the main challenge to the Rules failed, parts of the policy were heavily criticised.
This case (MM (Lebanon) & Ors v Secretary of State and another [2017] UKSC 10) concerned a challenge to controversial amendments to the Immigration Rules on 9 July 2012, introducing new Minimum Income Requirements (MIR) of £18,600 gross annual income (plus a number of other income requirements and exclusions) for those residing in the UK who wish to bring over their non-EEA partners.
Thousands of parents, partners and children have spent years apart from each other because they cannot meet this income threshold. It has implications for a large class of people.
Who makes the rules?
The Immigration Rules are an untypical form of legislation. Written by government officials now under Amber Rudd, they are passed by 'negative resolution' in Parliament rather than after active debate and scrutiny like other primary or secondary legislation. In law, the Rules amount to statements of how government policies should be applied. They are sometimes accompanied by policy instructions which gave further guidance on how Home Office caseworkers should apply the Rules.
The relationship between the Rules and the UK's obligations under the Human Rights Act 1998 is a notoriously complicated area and one which Judges and lawyers discuss and debate frequently. Despite attempts to harmonise the two systems, tensions remain.
The main issue in MM was whether the MIR were compatible with the government's duties under human rights legislation.
In the High Court, Mr Justice Blake found that the MIR, (though lawful) were a disproportionate interference with the Article 8 Convention rights to private and family life of the 3 appellants.
The Secretary of State appealed to the Court of Appeal, which found that the restrictions in the MIR were justified in the 3 cases before it and reversed the High Court's decision on that particular point.
Four years after the initial claim, the UK Supreme Court has now given its unanimous judgment, written by Lady Hale and Lord Carnwath. Four points are noteworthy.
1. The MIR are lawful
The Rules, though harsh in many cases, did not lead to inevitable violations of the human right to family life.
"80. There can be no doubt that the 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. There are several types of family, not illustrated in the cases before us, upon whom the MIR will have a particularly harsh effect. These include British citizens who have been living and working abroad, have married or formed stable relationships there, and now wish to return to their home country. Many of these relationships will have been formed before the new Rules were introduced or even publicly proposed. They also include couples who formed their relationships before the changes in the Rules were introduced and who had every expectation that the foreign partner would be allowed to come here. Of particular concern is the impact upon the children of these couples, many or even most of whom will be British citizens themselves.
…
81. … the fact that a rule causes hardship to many, including some who are in no way to blame for the situation in which they now find themselves, does not mean that it is incompatible with the Convention rights or otherwise unlawful at common law."
2. Some Immigration Rules are more challengeable than others
Although the Rules are all produced in the same way (see above), the Court made a broad distinction between two species of Rules.
Some Rules (like those governing the deportation of "foreign criminals") require Judges to give weight to public interest and policy considerations. Other Rules are more practical in nature and require Judges to apply their own independent views as to the right result.
"Not everything in the rules need be treated as high policy or peculiarly within the province of the Secretary of State, nor as necessarily entitled to the same weight… The tribunal is entitled to see a difference in principle between the underlying public interest considerations… and the working out of that policy through the detailed machinery of the rules and its application to individual cases…rules as to the quality of evidence necessary to satisfy that test in a particular case are… matters of practicality rather than principle; and as such matters on which the tribunal may more readily draw on its own experience and expertise. (§ 76)"
Refreshing as this is, changes made by Parliament in the Immigration Act 2014 have limited the scope for Judges imposing their own views on the right outcome in Article 8 family life cases.
3. The current Rules and guidance don't reflect the government's duty to safeguard and promote the welfare of children both in and outside of the UK
The instructions to caseworkers (available here) lay down criteria that are too stringent and fail to treat the best interests of children as a primary consideration, by reference to the factors of proportionality, practicality and feasibility of removing a non-national parent (§ 91). The SSHD's policy guidance is defective and requires amendment (§ 92).
"The duty imposed by section 55 of the 2009 Act stands on its own feet as a statutory requirement apart from the HRA or the Convention. It applies to the performance of any of Secretary of State's functions including the making of the rules. While the detailed guidance may be given by instructions, it should be clear from the rules themselves that the statutory duty has been properly taken into account. We would grant a declaration that in this respect both the rules and the instructions are unlawful."
4. Entry Clearance Officers deciding visa applications from spouses should be able to consider alternative sources of income
A strict application of the Rules excludes persons who have very good prospects of earning an income shortly after arriving in the UK and who will not be a burden on the state. This was not irrational or unlawful, but it was not in keeping with the Human Rights Act.
When considering whether to allow an application outside of the Immigration Rules and under Article 8 of the European Convention, the future income of the partner, plus any third-party sources of funding should be taken into account.
That's because working out whether a family would be a burden on the state was not a matter of policy or public interest, but (as noted above) a practical consideration open to Tribunal Judge's views of the evidence.
"…the guidance to officers should make clear that, where the circumstances give rise to a positive article 8 duty in the sense explained in Jeunesse, a broader approach may be required in drawing the "fair balance" required by the Strasbourg court. They are entitled to take account of the Secretary of State's policy objectives, but in judging whether they are met, they are not precluded from taking account of other reliable sources of earnings or finance. (§ 100)"
The current policy guidance (or the Rules themselves) ought to be re-written to enable this more flexible approach (§ 101).