The Court of Appeal has delivered its verdict as to whether Blake LJ was correct in concluding that the minimum income requirement (MIR) for applicants submitting entry clearance applications was indeed unlawful. The much anticipated decision may be deemed controversial as it unanimously held that the stringent requirements were not disproportionate and did not interfere with the rights protected under Article 8 of the European Convention of Human Rights 1953 (ie the right to a family life).
The new domestic framework, as set out at Part 8 of the Immigration Rules (and also found in Appendices FM and FM-SE), stipulates that where the partner of a person settled in the UK does not have ‘right of abode’ in the UK, or any other independent right to enter and remain in the country, the settled person (and not the applicant) must meet the following criteria:
- The MIR, which currently stands at a minimum annual income of £18,600 and can be met in one of five ways.
- For dependent children who wish to enter or remain in the UK, the required annual income increases by £3,800 for the first child and a further £2,400 for each additional child.
- In the absence of the requisite minimum gross income, the UK-based partner must evidence a minimum of £16,000 savings, in addition to savings of 2.5 times the shortfall between the gross annual income and total income required. Where applicants wish to rely solely on savings they must evidence a minimum of £62,500 cash savings, which needs to have been held for an entire six-month period before the date of application.
For initial entry clearance applications, only the income of the settled person will be taken into account and any financial support promised by third parties cannot be relied upon, save in exceptional circumstances. In Blake LJ’s view, this new element of the rules is:
‘… both irrational and manifestly disproportionate in its impact on the ability of the spouses to live together.’ (paragraph 137).
Indeed, given that the minimum income figures are based on the needs of a family of two, one would assume that the finances of both parties could be utilised.
The new objective approach, as per Part 8 of the Immigration Rules, is in contrast with the old provisions (pre-9 July 2012, namely s281(i) –(vi)) whereby applicants simply had to prove that they could maintain themselves ‘adequately’ without recourse to ‘public funds’. However, in the absence of a defined minimum amount meeting such maintenance, the old rules gave rise to inconsistency when assessing applications.
BACKGROUND OF THE CASE
There were three parties to the case, Mr Abdul Majid and Ms Shabana Javed both of whom were British nationals and Mr MM who, by virtue of his refugee status, had leave to remain in the UK. Their respective partners were non-EEA nationals and therefore required a visa to be able to enter the UK to join their spouses.
It was claimed that the MIR did not adequately accommodate challenges faced by refugees (Mr MM) in securing permanent employment, settled persons on benefits (Mr Majid) and women from an ethnic minority background living in disadvantaged areas who are paid less than their male counterparts (Ms Javed).
Blake LJ found in favour of the claimants on the grounds that new provisions were disproportionate and unlawful. The secretary of state appealed to the Court of Appeal.
COURT OF APPEAL FINDINGS AND IMPLICATIONS
In determining whether Blake LJ had arrived at the correct conclusion, the Court of Appeal identified eight issues it needed to deliberate on:
- Did the judge correctly characterise the nature of the new MIR and their aims?
- What are the legal principles by which the court should consider the question of the compatibility of the new MIR with the Article 8 rights of UK partners (and other relevant persons)?
- Was the judge’s analysis and conclusion that the new MIR are, in principle, incapable of being compatible with Article 8 rights of UK partners (and others if relevant) correct?
- Is the provision in the new MIR precluding reliance on third-party funding ‘irrational’ under the common law?
- On the basis that the new MIR did result in indirect discrimination within Article 14, was the judge correct to hold that such discrimination was ‘justified’?
- What is the relevance of the ‘exceptional circumstances’ provisions in the draft guidance and the immigration directorate instructions?
- Is there a separate ground of objection to the new MIR, based on s55 of the 2009 Act?
- The application for permission to cross-appeal by Mr Majid.
Mr Clive Peckover (a senior civil servant in the migration policy unit of the Home Office) testified that the aim of MIR was for individuals who wish to form a family life with their non-EEA partners do so without being a burden on the taxpayer. In addition, they should have the financial independence to support themselves and ensure the integration of the migrant partner in British society.
To this extent, the ‘the benefits approach’ was adopted by the Home Office in setting the threshold for the MIR. This approach was based on the fact that £18,600 is the minimum income at which a couple ceases to be entitled to receive any income-related benefits or tax credits, and which figures assumes that the average rent and Council Tax is being paid.
Blake LJ, with whom Aikens LJ in the Court of the Appeal agreed, found that the aim of the MIR was a legitimate aim and that the policies implemented by the secretary of state were done so on the basis of extensive research and data.
However, the disagreement among their Lordships stemmed from the question of compatibility with Article 8 rights. Aikens LJ disagreed with Blake LJ and said that the new Immigration Rules were not ‘arbitrary’ or ‘objectionable’. In his opinion, the MIR was lawful and compatible with Article 8 rights. Aikens LJ stated that the secretary of state is not under any obligation of guaranteeing compliance with the relevant convention right, provided the new rule can be applied in such way which is proportionate or justifiable in nearly all cases.
It is difficult to agree with this reasoning, given that an estimated 45% of applicants would fall foul of the MIR requirement. This significant percentage of applicants would certainly argue against the legitimacy of the MIR as they would be unable to live with their partners in the UK.
In response to this however, Aikens LJ promulgated that the right to live in the UK without hindrance is a right afforded to the UK partner only and it cannot be relied upon by non-EEA nationals. While he acknowledged that settled persons have the right to marry and to found a family, Article 8 laid no obligation on a member state to accommodate the choice of a married couple to reside within it.
Therefore, it would appear that the only obstacle for a couple wanting to reside in the UK is in meeting the MIR, and as this does not constitute a significant interference with Article 8, applicants must ensure that they do so if they wish to reside in the UK.
In practical terms, for applicants who do not qualify, this means either looking to live somewhere else other than the UK or living apart from each other until such time that the MIR requirements are met.
It has been reported that some couples are resorting to these harsh options. By exercising treaty rights in a member state, settled persons are trying to re-enter the UK with their non-EEA partners under EU legislation as this does not impose a minimum financial requirement.
It was acknowledged in the Court of Appeal that there is an element of indirect discrimination which stemmed from the background and demography of migrants. However, as the intended aim of MIR was declared legitimate and compatible with Article 8, it was decided that it was not for the Court to interfere with the boundaries established as any dilution could create more discrimination.
Therefore, individuals such as Ms Javed, who reside in areas where there is less opportunity and high unemployment, are placed at a significant disadvantage. By contrast, settled persons who are able to secure employment in these areas are usually quite fortunate, however, those who have non-EEA partners also have the added pressure of ensuring that their salaries meet the £18,600 threshold.
It would also be very difficult for the average person to be able to rely on cash savings amounting to £62,500. With regards to the relevance of the ‘exceptional circumstances’, it was held that the provisions did not impact on the lawfulness of the MIR themselves. However, Aikens LJ stated that, decisions which did not apply proportionality when considering ‘exceptional circumstances’ could be challenged on the decision itself but not the legal framework, ie by judicial review. It is yet to be determined what would qualify as ‘exceptional circumstances.’
Further hardship will be endured in cases involving dependent children, as his lordship ruled that there is no requirement for the secretary of state to implement determinative rules where the best interests of a child are concerned, stating that s55 of the Borders, Citizenship and Immigration Act 2009 (the 2009 Act) ‘is not a trump card’ to be played in such circumstances. Therefore, the MIR cannot be objected to by relying on s55 of the 2009 Act.
Mr Majid’s application to cross-appeal sought to rely on E-LTRPT.4.1 of Appendix FM which states that applicants need only evidence that:
‘… they will be able adequately to maintain and accommodate themselves and any dependants in the UK without recourse to public funds’.
However, the application was refused and it was held that E-LTRPT.4.1 of Appendix FM could not be relied upon to evade the stringent requirements of MIR. He further stated that the secretary of state had fully executed her duties in relation to s55 of the 2009 Act and was therefore not discriminatory. In practice it is unlikely that many applicants will meet all the requirements of E-LTRPT.4.1. Therefore, there will be instances whereby children are not able to reside in the UK with their settled parent unless the MIR is met, resulting in the separation of families with no apparent recourse to Article 8 protections.
The impact of this ruling will be far reaching and will be felt particularly by those who are on low incomes, benefits, unemployed or have little savings. The personal circumstances of settled persons and their status in the UK are unfortunately of little relevance, as the MIR criteria is an objective test which must be satisfied. Despite being in a relationship where the both parties contribute financially, applicants cannot rely on their joint income for initial applications and promises of funding or financial support from third parties are not accepted within the criteria.
This judgment confirms that Part 8 of the Immigration Rules, and the relevant appendices, needs to be strictly adhered to and accordingly close attention must be paid to the rules when an application is prepared. The starting point should be Part 8 of the rules itself, followed by Appendix FM and Appendix FM-SE. Appendix FM-SE is especially useful as it sets out the specific documents required to meet the MIR. In all cases, applicants should aim to submit the documents listed therein and ensure that they fully meet the criteria as there is little room for discretion. Further, how an applicant intends to meet the MIR, and the sources they will rely on, needs to be established early on as the timing for submission is crucial.
It would appear that unless a settled person has secure employment and can evidence an income of at least £18,600, or a couple has cash savings of £62,500, many applicants in the relevant categories will be unable to meet the MIR requirements. There will also be circumstances where applicants will need to wait a period of time before being able to join their spouses, in the event they are unable to provide the required documents covering the specified period.
While the practical considerations are unfavourable to those who have difficulty in meeting the MIR, this ruling confirms the legitimacy of the requirements and it would therefore be unwise to submit applications which do not meet the stringent requirements. Failing to meet the MIR will undoubtedly result in a refusal. It is unclear whether a further appeal will be made in respect of this decision to the Supreme Court, however until such time the rules remain in force and need to be adhered to.