Minimum income rules for immigrants do not breach human rights – Appeal Court

MM(Lebanon) and Others, R (on the application of ) v Secretary of State for the Home Department & Anor [2014] EWCA Civ 985 (11 July 2014) – read judgment

Provisions in the Immigration Rules which impose income requirements on individuals living in the United Kingdom, who wish to bring their non-European Economic Area citizen spouses to live with them, are not a disproportionate interference with their right to family life under Article 8 of the European Convention on Human Rights. The Court of Appeal has also underlined the important (but often misunderstood) point that there is no legal requirement that the Immigration Rules should provide that the best interests of the child should be determinative. Section 55 of the Borders, Citizenship and Immigration Act 2009 is not a “trump card” to be played whenever the interests of a child arise.

Background

This was an appeal by the secretary of state against a ruling by Blake J in the Administrative Court regarding the 2012 changes to the Immigration Rules. These created a requirement that a UK partner who wishes to sponsor the entry of a non-EEA partner must have a “Minimum Income Requirement”(MIR) of £18,600 gross per annum and additional income in respect of each child who wishes to enter the UK. Before 2012, the maintenance requirement for a non-EEA spouse or partner of a British citizen to be given entry clearance was that the parties had to demonstrate that they could maintain themselves “adequately” without recourse to “public funds”. That phrase included social housing and most welfare benefits, but excluded the NHS, education and social care. The rules were changed because the pre 2012 prohibitions and controls on the ability of migrant spouses or dependants to take advantage of public funds such as welfare benefits were too complex to administer and enforce. Furthermore, once a non-EEA migrant had obtained Indefinite Leave to Remain, there was a considerable burden on the public purse. The policy intention behind the new provisions was

that those who choose to establish their family life in the UK by sponsoring a non-EEA partner to settle here should have sufficient financial independence to be able to support themselves without becoming a financial burden on the taxpayer, and moreover should have the financial wherewithal to ensure that their migrant partner is able to participate in everyday life beyond a subsistence level and therefore able to integrate in British society. (Witness statement from the Migration Policy Unit of the Home Office)

In the words of Laws LJ (in A.M. (Ethiopia) 2008), the only purpose of these Immigration Rules was to “articulate the Secretary of State’s specific policies with regard to immigration control from time to time as to which there are no presumptions, liberal or restrictive”. Therefore the court’s assessment must be limited to their wording and there was no basis for searching for some further, extraneous, “purposive” or meta-construction. In a similar vein, Lord Carnwath said that the rules ought to be given their ordinary meaning, without “distortion by reference to any supposed over-arching objective”, such as the promotion of family life (A.M.).

Three individuals, two British citizens and one with the right of abode in the UK, had challenged these rules in judicial review proceedings in order to strike down the MIR altogether as being incompatible with Articles 8, 12 and 14 of the ECHR, or as being irrational at common law. They had succeeded at first instance under Article 8, although they had not satisfied the judge that the rules were discriminatory under Article 14.

The issues for the appeal court were as follows:

had the judge correctly characterised the requirements’ nature and aims;
what were the principles by which the court should consider the requirements’ compatibility with UK partners’ Article 8 rights;
had Blake J been correct to conclude that the requirements were in principle incapable of compatibility with UK partners’ Article 8 rights;
was the MIR’s direction that third party funding should be disregarded irrational at common law;
had the judge been correct to find that any Article 14 discrimination caused by the requirements was justified.

The court upheld the appeal.

Reasons behind the judgment

In the Administrative Court Blake J had provided an “impressive” analysis of the case law of the European Court of Human Rights (“ECtHR”) concerning provisions in national rules that restrict the right of immigration into the UK.

It was fundamental that under section 1(1) of the Immigration Act 1971 that British citizens are “free to live in the United Kingdom without let or hindrance”, subject only to specific and limited statutory restrictions. However, the Immigration Rules have, historically, extended to making provision restricting the admission of dependants of persons lawfully within the UK. Where a person’s Article 8 rights were concerned, in the important 1985 decision of Abdulaziz, Cabales and Balkandali v UK the majority of the ECtHR re-stated not only the well-established international law rule that a State has the right to control the entry of non-nationals into its territory, but also confirmed the principle that “the extent of a State’s obligation to admit to its territory relatives of settled immigrants will vary according to the particular circumstances of the persons involved”. In that judgment, it will be remembered, Strasbourg held that there was no interference by the UK with the Article 8 rights of the three women by refusing to allow their husbands to join them in the UK. The ECtHR laid down the broad proposition that

the duty imposed by Article 8 could not be considered as extending to a general obligation on the part of a Contracting State to respect the choice by married couples of the country of their matrimonial residence and to accept the non-national spouses for settlement in that country

– particularly where it was not shown that there were obstacles to establishing family life in their own or their husbands’ own home states or that could not be expected of them.

Blake J had accepted that the MIR requirements had, as their legitimate aim, the reduction of expense on the public purse and a better opportunity for greater integration of non-EEA spouses within British society. But he was troubled by several features of the new rules, which, when applied either to recognised refugees or British citizens, were so onerous in effect as to constitute “an unjustified and disproportionate interference with a genuine spousal relationship” and the consequences were so excessive in impact as to be “beyond a reasonable means of giving effect to the legitimate aim”. These features included the requirement of a minimum savings figure of £16,000 and the disregard of any undertakings of third party support and no regard for the future earning capacity of the non-EEA spouse for the first 30 months. The judge particularly objected to the fact that there was no doctrine of the “near miss” whereby a narrow failure to meet a requirement of the rules could be cured by indulging in “an Article 8 balance”. The respondents in this appeal also submitted that the rules concerning the new MIR were deficient in making no reference to or provision for exceptions.

In an important case on the Convention compatibility of Immigration Rules, the House of Lords considered a challenge to a statutory scheme to prevent “marriages of convenience” in R (Baiai and another) v Secretary of State for the Home Department (No 2) (see our post on Quila and other challenges that followed this case). Here, the question was whether those rules disclosed an interference with the applicants’ right to marry under Article 12 of the Convention. They decided it was, because the scheme imposed “a blanket prohibition on the right to marry”, and the Strasbourg Court took the same view when the issue arose before it in O’Donoghue v UK.

In other words, because the “exceptional, compassionate circumstances” provision did not envisage the grant of a “marriage visa” where it was clear the marriage was unforced, that provision was not specifically directed to the objective that the new IR was intended to deal with, viz. the problem of forced marriages.

The line of cases from A.M. (Ethiopia) indicates that the Secretary of State’s duty is to protect an immigrant’s Convention rights whether or not that is done through the medium of the IRs so that “it follows that the Rules are not of themselves required to guarantee compliance with the [relevant Article]“(per Laws LJ in AM at [39]). A particular rule did not, in each case, have to result in a person’s Convention rights being guaranteed, but if the rule was incapable of being applied proportionately or justifiably, it would be unlawful.

Whilst the MIRs under attack constituted a very significant interference with the Article 8 rights of the UK partners, the aims of the policy were sufficiently important to justify this limitation on Convention rights. Not only was there was a rational connection between the figures required and the policy aim, the secretary of state had analysed the effect of immigration of non-EEA partners on the benefits system, the level of income needed to minimise dependence on the state, and reached a rational conclusion on the link between income and integration. If a form of income requirement was to be imposed, the executive had to draw a line somewhere. Unless it was wholly unreasonable, the court should not interfere – the judiciary was in no position to substitute its own view as to the appropriate income level for that chosen by the executive. The secretary of state had demonstrated that the interference was the minimum necessary and struck a fair balance between the interests of the groups concerned and the community in general.

It followed that the third party funding requirement was not irrational, nor had it been imposed on a whim. As for the claim under Article 14, the secretary of state had been aware of the indirect discriminatory impact the requirements could have. It was impractical and inappropriate to try to make provision in the Rules for possible impact on different groups. The judge had been correct to find any indirect discrimination was justified.

Immigration Bill becomes law

From:
Home Office, UK Visas and Immigration, Border Force and James
Published 14 May 2014

The Immigration Bill received Royal Assent today (14 May).
UK border

The Immigration Bill received Royal Assent today (14 May) making way for a series of reforms which will ensure our immigration system is fairer to British citizens and legitimate migrants and tougher on those with no right to be here.

The Immigration Act 2014 contains 77 clauses and makes fundamental changes to how our immigration system functions.

It will limit the factors which draw illegal migrants to the UK, make it easier to remove those with no right to be here and ensure the Courts have regard to Parliament’s view of what the public interest requires when considering Article 8 of the European Convention on Human Rights in immigration cases.
Immigration Act

Immigration and Security Minister James Brokenshire said:

The Immigration Act is a landmark piece of legislation which will build on our existing reforms to ensure that our immigration system works in the national interest.

We are already planning its implementation and will ensure these measures are introduced quickly and effectively.

The Immigration Act will significantly enhance the way Border Force, Immigration Enforcement and UK Visas & Immigration undertake their work to secure the border, enforce the immigration rules and continue to attract the brightest and the best.

Highlights of the Immigration Act

Cutting the number of immigration decisions that can be appealed from 17 to 4, while allowing us to return certain harmful individuals before their appeals are heard if there is no risk of serious irreversible harm
Ensuring that the courts have regard to Parliament’s view of what the public interest requires when considering European Convention of Human Rights (ECHR) Article 8 claims in immigration cases – making clear the right to a family life is not to be regarded as absolute and unqualified
Clamping down on people who try to gain an immigration advantage by entering into a sham marriage or civil partnership
Requiring private landlords to check the immigration status of tenants, preventing those with no right to live in the UK from accessing private rented housing
Introducing a new requirement from temporary migrants with time-limited immigration status by requiring them to make a financial contribution to the National Health Service

Immigration Act

The Immigration Act will also include powers to prevent repeat bail applications when a removal is imminent, revoke driving licences held by immigration offenders and allow the Home Secretary to deprive a naturalised individual of their British citizenship if their actions have been seriously prejudicial to the interests of the United Kingdom and the Home Secretary has reasonable grounds for believing the person is able to become a national of another country.
Immigration Act

The Immigration Act has been a collaborative effort, involving the Home Office, 12 other government departments, the devolved administrations and the Crown dependencies.

It also continues the Home Office’s work to reduce net migration by focusing on eliminating immigration abuse, including removing from the UK those with no right to be here and preventing others from entering.

Old and minor convictions and cautions need not be disclosed – Supreme Court(Article 8 of the Convention)

R (On the application of T and another) (Respondents) v Secretary of State for the Home Department and another (Appellants) – read judgment

criminal-background-checkR (On the application of T and another) (Respondents) v Secretary of State for the Home Department and another (Appellants) – read judgment

The Supreme Court has unanimously declared that government rules regarding the disclosure of spent convictions are unlawful and incompatible with Article 8 of the Convention.

One of these conjoined appeals involved T, who was prevented from employment involving contact with children when a police caution was disclose in respect of the theft of two bicycles when the respondent was eleven years old (see my previous post on the Court of Appeal judgment in T). In JB, the police issued a caution to a 41 year-old woman in 2001 when she was caught shoplifting (a packet of false fingernails). In 2009 she completed a training course for employment in the care sector. She was required to obtain an “enhanced criminal record certificate” or ECRC, which disclosed the caution. The training organisation told JB that it felt unable to put her forward for employment in the care sector.

Both respondents claimed that the references in the ECRCs to their cautions violated their right to respect for private life under Article 8 of the European Convention on Human Rights. T also asserted that his obligation to disclose the warnings violated the same right. Both T and JB were successful in the Court of Appeal, which made declarations that the relevant provisions of the 1997 Act were incompatible with Article 8. The Court of Appeal in T held that the 1975 Order was also incompatible with article 8 and beyond the powers set out in the Rehabilitation of Offenders Act 1974.

The Secretaries of State appealed to the Supreme Court. While they have made amendment orders designed to eliminate the problems identified by the Court of Appeal, their appeals concern the 1975 Order and 1997 Act as they stood at the time.

The following summary is based on the Supreme Court’s Press Summary.

Legal Background

Under the 1974 Act, where a person is asked about his criminal record the question will be treated as not extending to ‘spent’ convictions. Consequently, he is entitled not to disclose these and cannot be liable for a failure to do so. Equally, a prospective employer is not entitled to make any decision prejudicial to the individual by reference to spent convictions or to any failure to disclose them. This applies to cautions, warnings or reprimands, which are spent as soon as they are given.

However, the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 and various sections in Part V of the Police Act 1997 make certain questions exempt from the 1974 Act, particularly where they relate to specified professions and employments, such as working with children and vulnerable adults. Part V of the 1997 Act deals with enhanced criminal record certificates (ECRCs). These are issued where an “exempted question” within the meaning of the 1975 Order is asked, including by a prospective employer. Disclosure is then made of every “relevant matter” recorded on the Police National Computer, including, at the relevant time, any spent conviction or caution [83-84]. These were the provisions which the Court of Appeal declared to be incompatible with the Convention in January 2013.

Lord Neuberger (President), Lady Hale (Deputy President), Lord Clarke, Lord Wilson, Lord Reed unanimously dismissed the Secretary of State’s appeals against these declarations of incompatibility. They allowed the appeal against the Court of Appeal’s declaration that the 1975 Order was ultra vires.

Reasoning behind the decision

The respondents’ cautions represented an aspect of their private lives, respect for which is guaranteed by Article 8. Laws requiring a person to disclose his previous convictions or cautions to a potential employer constituted an interference with that right. The disclosures in the ECRCs also constituted Article 8 interferences, significantly jeopardising the respondents’ entry into their chosen fields of endeavour.

Lord Reed considered that sections 113A and 113B of the 1997 Act were incompatible with Article 8 because they fail to meet the requirement under the Convention that any interference with the Convention right be “in accordance with law”. In this he followed the line of reasoning taken by the Strasbourg Court in MM v UK (No 24029/07, The Times 16 January 2013). Legality requires safeguards which enable the proportionality of the interference to be adequately examined [108-119; 158]. Legislation like the present which requires the indiscriminate disclosure by the state of personal data which it has collected and stored did not contain adequate safeguards against arbitrary interferences with Article 8 rights [113-119]. Lord Neuberger, Lord Clarke and Lady Hale agreed with Lord Reed’s conclusion on legality [158], while Lord Wilson disagreed [28-38], emphasising the importance of the distinction between the tests of legality and necessity in a democratic society. On this point he was critical of the European Court’s approach in MM. It could not be seriously argued, he said,

that the way in which the regimes for the issue of certificates under the 1997 Act and for the obligation to answer questions (and for the questioner to act in reliance on them) under the 1975 Order worked were insufficiently accessible or foreseeable for them not to be “in accordance with law” [31]

Both domestic courts and Strasbourg are giving way to the temptation to elide the tests of legality and necessity when determining whether an interference with Convention rights is permissible. It is particularly important that Strasbourg judges observe the difference between the two, because legality is a bright line test, whereas necessity gives states some margin to manoeuvre:

a cardinal feature of [the Strasbourg] court’s jurisprudence in relation to necessity is to afford a margin of appreciation, of greater or lesser width, to the contours within which the member state has seen fit to draw the impugned rules. The ECtHR does not extend the margin of appreciation – and it is right that it should not do so –to its consideration of legality. [32]

In Lord Wilson’s view, Strasbourg’s “powerful criticism” in MM of the failure of the regime under the 1997 Act to regulate disclosure by reference to the circumstances of the caution, clearly addresses its proportionality and thus the necessity, as opposed to the legality, of the interference. The 1997 Act did not fall foul of the principle of legality; its application, on the other hand, to the cases of T and JB the regime set up by the 1997 Act and by the 1975 Order failed the requirement of necessity.

The disclosure of their cautions, obviously that of T but also in my view, in the light of the triviality of her one and only offence, that of JB, went further than was necessary to accomplish the statutory objective and failed to strike a fair balance between their rights and the interests of the community; and so it violated their rights under article 8. [50]

Lord Wilson noted, further, that it was the Home Secretary who identified a need to scale back the criminal records system “to common sense levels”. Lord Reed pointed to a lack of a rational connection between dishonesty as a child and the question of whether, as an adult, the person might pose a threat to the safety of children with whom he comes into contact [142].

In upholding the declarations of incompatibility in relation to the 1997 Act, the Court observed that it was impossible to read and give effect to its provisions in a way which was compatible with the respondents’ Convention rights [53; 120]. But they allowed the Secretary of State’s appeal in T against the decision that the 1975 Order was ultra vires. This was inconsistent with the declaration of incompatibility, which stated that it did not affect the validity or continuing operation of the 1997 Act, Part V of which in fact relied upon the validity of the terms of the Order [61-62]. No judicial remedy in relation to the Order ws necessary. Lord Reed explained that it had no adverse consequences for T and he could be regarded for the purposes of the Convention as having obtained just satisfaction given the courts’ acceptance that his complaint is well-founded and the resultant amendment of the Order [66;157-158].