Immigration Rules on Financial Requirements in the UK for non-EEA Members Need to Conform to Article 8 of the European Convention on Human Rights
April 3, 2017
Immigration Rules on Financial Requirements in the UK for non-EEA Members Need to Conform to Article 8 of the European Convention on Human Rights
R (on the applications of MM (Lebanon) and 3 others) v Secretary of State for the Home Department
SS (Congo) v Entry Clearance Officer, Nairobi
The Supreme Court of the United Kingdom
 UKSC 10
Lady Hale, DP, Lord Kerr, Lord Wilson, Lord Reed, Lord Carnwath, Lord Hughes, Lord Hodge
February 22, 2017
Reported by Linda Awuor & Faith Wanjiku
International Law-Law of Treaty-European Convention on Human Rights-human Rights-right to respect for private and family life, right to marry and prohibition of discrimination – whether the Immigration Rules on Minimum Income Requirements were incompatible with the rights of the Appellants and their partners (and a child living with one of them) under articles 8, 12 and 14 of the Convention-European Convention on Human Rights 1950, articles 8, 12 and 14
Immigration Law-Children-duty regarding the welfare of children-whether the Immigration Rules on Minimum Income Requirements failed to take account of the 1st Respondent’s duty under section 55 of the Borders Citizenship and Immigration Act to safeguard and promote the welfare of children when making decisions which affected them-Borders Citizenship and Immigration Act, 2009, section 55
Common Law-Illegality-whether the Immigration Rules on Minimum Income Requirements were unreasonable and ultra vires on common law principles-Immigration Rules, Appendix FM Section E-ECP
In July 2012, the Immigration Rules of the UK (Rules) were amended to establish new entry requirements for non-European Economic Area (non-EEA) applicants to join their spouses or civil partners in the United Kingdom. Those included a minimum income requirement (MIR) of at least £18,600 per annum with additional sums for dependent children, to be satisfied by the sponsoring spouse or civil partner.
Before the introduction of the MIR, the Immigration Rules required broadly that the parties be able to maintain and accommodate themselves and any dependents adequately in the UK without recourse to public funds, which included social housing and most welfare benefits but not the National Health Service, education and social care. That is still the criterion which applies if the applicant’s partner is in receipt of disability living allowance or similar disability-related benefits.
In four appeals before the Court, the Appellants claimed that the Rules themselves, and the Immigration Directorate Instruction on family migration giving guidance to entry clearance officers (Instructions), were incompatible with the rights protected by the European Convention on Human Rights (Convention), principally the right to family life in article 8, and unlawful under common law principles. One of the Appellants was a child, and it was contended that the Rules failed to take account of the 1st Respondent’s duty under section 55 (the section 55 duty) of the Borders, Citizenship and Immigration Act 2009 (BCI Act) to have regard to the need to safeguard and promote the welfare of children when making decisions which affected them. The fifth appeal, brought by SS (appellant), was against the refusal of entry clearance because of a failure to meet the MIR on the facts of her case.
The claims to strike down the Rules partly succeeded in the High Court, but that decision was reversed by the Court of Appeal. SS appealed successfully against the refusal to grant her entry clearance to the First-tier Tribunal, which found that she and her husband would not have been able to live together in the Democratic Republic of Congo, where she was a citizen, but from which he had been granted asylum in the UK. He could not meet the MIR but the refusal was found to be a breach of article 8. The Entry Clearance Officer’s appeal failed in the Upper Tribunal but was allowed by the Court of Appeal.
i. Whether the Immigration Rules on Minimum Income Requirements were incompatible with the rights of the Appellants and their partners (and a child living with one of them) under articles 8, 12 and 14 of the European Convention on Human Rights, 1950.
ii. Whether the Immigration Rules on Minimum Income Requirements failed to take account of the 1st Respondent’s duty under section 55 of the Borders Citizenship and Immigration Act, 2009 to safeguard and promote the welfare of children when making decisions which affected them.
iii. Whether the Immigration Rules on Minimum Income Requirements were unreasonable and ultra vires on common law principles.
Relevant Provisions of the Law
Immigration Rules UK
Appendix FM: family members
Section EC-P: Entry clearance as a partner
EC-P.1.1. The requirements to be met for entry clearance as a partner are that-
(a) the applicant must be outside the UK;
(b) the applicant must have made a valid application for entry clearance as a partner;
(c) the applicant must not fall for refusal under any of the grounds in Section S-EC: Suitability–entry clearance; and
(d) the applicant must meet all of the requirements of Section E-ECP: Eligibility for entry clearance as a partner.
Section E-ECP: Eligibility for entry clearance as a partner
E-ECP.1.1. To meet the eligibility requirements for entry clearance as a partner all of the requirements in paragraphs E-ECP.2.1. to 4.2. must be met.
E-ECP.3.1. The applicant must provide specified evidence, from the sources listed in paragraph E-ECP.3.2., of-
(a) a specified gross annual income of at least-
(ii) an additional £3,800 for the first child; and
(iii) an additional £2,400 for each additional child; alone or in combination with
(b) specified savings of-
(i) £16,000; and
(ii) additional savings of an amount equivalent to 2.5 times the amount which is the difference between the gross annual income from the sources listed in paragraph E-ECP.3.2.(a)-(d) and the total amount required under paragraph E-ECP.3.1.(a);
European Convention on Human Rights, 1950
Article 8-Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
Article 12-Right to marry
Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.
Article 14-Prohibition of discrimination
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
Borders, Citizenship and Immigration Act, 2009
Section 55-Duty regarding the welfare of children
(1) The Secretary of State must make arrangements for ensuring that—
(a) the functions mentioned in subsection (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom…
United Nations Convention on the Rights of the Child, 1989
Article 3 (1)
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
- The Court would not be entitled to strike down the rules unless satisfied that they were incapable of being operated in a proportionate way and so were inherently unjustified in all or nearly all cases. That observation reflected the fact that, as a general rule, it was the decision in an individual case which could have been incompatible with the European Convention on Human Rights (Convention), rather than the relevant general rules or policies. That applied also to the Secretary of State’s duty under section 6 of the Human Rights Act, 1998 (HRA) not to act in a way which was incompatible with a Convention right. Compliance in an individual case did not necessarily depend on the Immigration Rules.
- The immigrant’s article 8 rights of the Convention had to be protected by the Secretary of State and the Court whether or not that was done through the medium of the immigration rules. It followed that the rules were not of themselves required to guarantee compliance with the article.
- There could have been no doubt that the MIR had caused, and would continue to cause, significant hardship to many thousands of couples who had good reasons for wanting to make their lives together in the country, and to their children. There were several types of families, not illustrated in the cases before the Court, upon whom the MIR would have a particularly harsh effect. Those included British citizens who had been living and working abroad, had married or formed stable relationships there, and now wished to return to their home country. Many of those relationships would have been formed before the new Rules were introduced or even publicly proposed. They also included couples who formed their relationships before the changes in the rules were introduced and who had every expectation that the foreign partner could have been allowed to come to the country. Of particular concern was the impact upon the children of those couples, many or even most of who would be British citizens themselves.
- The fact that a rule caused hardship to many, including some who were in no way to blame for the situation in which they found themselves, did not mean that it was incompatible with the Convention rights or otherwise unlawful at common law. Under the Convention rights, the arguments had concentrated on article 8, the right to respect for private and family life, either alone or in conjunction with article 14, the right to enjoy the Convention rights without discrimination, rather than on article 12, the right to marry and found a family. The MIR did not, as such, prevent a couple marrying. It did, however, present a serious obstacle to their enjoying family life together. It could constitute a permanent impediment to many couples, because the sponsor would never have been able to earn above the threshold and the couple would not have been able to amass sufficient savings to make good the shortfall. Female sponsors, who had constituted as many as a third of the total, were disproportionately affected, because of the persisting gender pay gap, as were sponsors from certain ethnic groups whose earnings tended to be lower, and those from parts of the country where wages were depressed.
- In the case, there undoubtedly was an immigration dimension. The MIR was part of an overall strategy aimed at reducing net migration. Its particular aims were no doubt entirely legitimate: to have ensured, so far as practicable, that the couple did not have recourse to welfare benefits and had sufficient resources to be able to play a full part in British life. As accepted by the courts below, those aims were sufficient to justify the interference with, or lack of respect for, the Convention article 8 right on right to respect for private and family life.
- Although section 55 of the BCI Act was in terms directed to children in the UK, the 1st Respondent had accepted that the same approach should have been applied to the welfare of children elsewhere. The guidance that consideration needed to be given to the effective and material contribution that the Applicant’s presence in the UK would make to safeguarding and promoting the welfare of the child was defective in that respect and needed to be amended in line with principles stated by the Strasbourg Court (European Court of Human Rights) in that significant weight had to be given to the interests of children. The statement that the duty had already been taken into account in the rules and the gap filled in separate consideration under article 8, but not section 55 was wrong in law.
- That was not simply a defect of form, nor a gap which could have been adequately filled by the instructions on how the Immigration Rules themselves reflected the position of the Secretary of State on proportionality and reflected how the balance should have been struck between individual rights and the public interest. The duty imposed by section 55of theBCI Act on welfare of children stood on its own feet as a statutory requirement apart from the HRA or the Convention. It applied to the performance of any of the Secretary of State’s functions including the making of the rules. While the detailed guidance could have been given by instructions, it should have been clear from the rules themselves that the statutory duty had been properly taken into account. In that respect both the rules and the instructions were unlawful.
- In Mahad v Entry Clearance Officer, the Court rejected the argument that a narrow construction could have been adopted to have reflected the relative precariousness of sources such as third party support, and difficulties of verification. It went on to state that, generally, unenforceable third party promises were likely to be more precarious and less easily verifiable than a sponsor’s own legal entitlements that could not invariably have been so. It would surely have been somewhat anomalous if entry clearance officers (ECOs) could have accepted promises of continuing accommodation and/or employment and yet not promises of continuing payments, however regularly they could have been shown to have been made in the past and however wealthy the third party could have been seen to be. A second consideration, never to have been lost sight of, was that it was always for the Applicant to satisfy the ECO that any third party support relied upon was indeed assured. If he failed to do so, his application would fail.
- That that could have been difficult was recognised in the Arman Ali case. The Court there in had no doubt that it would have been rare for applicants to have been able to satisfy an entry clearance officer, the Secretary of State or an adjudicator that long-term maintenance by a third party would have been provided so that there would have been no recourse to public funds. But whether or not such long-term support would have been provided was a question of fact to be determined on the evidence.
- In considering the legality of the stricter approach in the new rules, it was necessary to distinguish between two aspects: first, the rationality of that aspect of the rules or instructions under common law principles, and secondly the compatibility with the HRA of similar restrictions as part of consideration outside the rules. As to the first, while the application of those restrictions could have seemed harsh and even capricious in some cases, the matter was given careful consideration by both the Migration Advisory Committee and the Secretary of State. The decision was not taken on a whim. It was not irrational in the common law sense for the Secretary of State to give priority in the rules to simplicity of operation and ease of verification.
- Operation of the same restrictive approach outside the rules was a different matter, and was much more difficult to justify under the HRA. That was not because less intrusive methods might have been devised, but because it was inconsistent with the character of evaluation which article 8 of the Convention required. Avoiding a financial burden on the state could have been relevant to the fair balance required by the article. But that judgment could not properly have been constrained by a rigid restriction in the rules. Nothing that was said in the instructions to case officers could have prevented the tribunal on appeal from looking at the matter more broadly.
- Those were not matters of policy on which special weight had to be accorded to the judgment of the Respondent. There was nothing to have prevented the tribunal, in the context of the HRA appeal, from judging for itself the reliability of any alternative sources of finance in the light of the evidence before it. In doing so, it would no doubt have taken account of such considerations as those discussed in the Mahad case, including the difficulties of proof highlighted. That being the position before the tribunal, it would have made little sense for decision-makers at the earlier stages to have been forced to take a narrower approach which they might have been unable to have defended on appeal.
- The issue wasn’t going to the legality of the rules but to what was necessary as the guidance to officers. It should have made clear that, where a positive article 8 duty of the Convention arose as explained in Jeunesse v The Netherlands that regard had to be had to the fair balance to be struck between the competing interests of the individual and of the community as a whole. Hence a broader approach could have been required in drawing that fair balance asrequired by the Strasbourg court. They were entitled to take account of the Respondent’s policy objectives, but in judging whether they were met, they were not precluded from taking account of other reliable sources of earnings or finance. It was open to the Respondent to have indicated criteria by which reliability of such sources could have been judged, but not to have excluded them altogether.
- While the rules as such were not open to challenge, there were aspects of the instructions to entry clearance officers which required revision to ensure that the decisions made by them were consistent with their duties under the HRA to make a merits-based assessment compatible with the Convention. In the light of that conclusion, the Respondent might have wished to consider whether it would have been more efficient to revise the rules themselves, to indicate the circumstances in which alternative sources of funding should or could have been taken into account, rather than simply to revise the guidance.
- As for the individual appeal, the First-tier Tribunal despite having found non-material flawed reasoning in the Upper Tribunal’s decision found insurmountable obstacles in the way of their living in DRC. There were no factors of immigration control or public order weighing in favour of exclusion. The only factor pointing the other way was the fact that that was a post-flight relationship, formed when there was no guarantee that the Appellant would have been admitted, although it began in 2010 before the Rules were changed, and the sponsor would easily have met the old adequate maintenance test.
- The reason for including refugees and those granted humanitarian protection in the MIR on the same terms as others was that their relationships developed post-flight. That should not have been treated more favorably than the relationships of British citizens and others who had settled there. But neither should such individuals have been treated less favorably. If there were insurmountable obstacles to a non-refugee British citizen going to live in his partner’s home country, and there was nowhere else for them to go, it would have been necessary to weigh the precariousness aspect against the extent to which the couple would, in fact, have been able to support themselves.
- It was no doubt desirable that there should have been a consistent approach to issues of that kind at tribunal level, with means to achieve that within the tribunal system. As was said in Mukarkar v Secretary of State for the Home Department, it was of the nature of such judgments that different tribunals, without illegality or irrationality, could have reached different conclusions on the same case. The mere fact that one tribunal had reached what could have seemed an unusually generous view of the facts of a particular case did not mean that it had made an error of law nor did it create any precedent, so as to have limited the Secretary of State’s right to have argued for a more restrictive approach on a similar case in the future. However, on the facts of the particular case, the decision of the specialist tribunal had to be respected.
- The immigration rules failed unlawfully to give effect to the duty of the Secretary of State in respect of the welfare of children under section 55 of the BCI 2009 Act. Save to that extent, the Court dismissed the challenge to the validity of the rules.
- As for the instructions that a decision in accordance with the rules would not involve a breach of article 8 of the Convention save in exceptional circumstances, the Court indicated those aspects which required revision. However, given the passage of time, including new legislation, it would have been wrong for the Court to have attempted to indicate how those defects should have been corrected. It was preferable to adjourn the question of remedies to allow time for the Secretary of State to consider her position, and to indicate to the Appellants and to the Court how she proposed to amend the instructions or other guidance to accord with the law as indicated in the judgment. The Court would receive written submissions on such proposals, and consider whether a further hearing was necessary.
Appeals partly allowed.
a) 1st to 4th appellants’ appeals allowed to the extent that the MIR was acceptable in principle but that the Rules and the Instructions unlawfully failed to take proper account of the section 55 duty on welfare of children. The Instructions also required amendment to allow consideration of alternative sources of funding when evaluating a claim under article 8.
b) 5th appellant’s successful appeal in the Upper Tribunal on article 8 grounds was restored.
Relevance to the Kenyan Situation
The Constitution of Kenya, 2010 in article 39 (1) and (2) provides that every person has the right to freedom of movement and the right to leave Kenya. The UN General Assembly, Universal Declaration of Human Rights, 1948 provides in its article 13 that everyone has the right to freedom of movement and residence within the borders of each State and that one has the right to leave any country, including his own, and to return to his country.
Immigration to other countries is a characteristic exhibited by the people of Kenya and specifically to the United Kingdom. Kenya is a non-European Economic Area country. The case is essential to her as it has brought to light the new immigration rules on financial requirements for entry clearance of a partner with or without children, seeking to join their spouses or civil partners in the United Kingdom.