Posted on April 04th 2016
The Home Office has agreed to review the Guidance concerning the Best Interests of children outside of the UK, following an intervention by JCWI and the Office of the Children's Commissioner (OCC) in the Supreme Court case of MM & Ors.
Following on from the recent Supreme Court hearing last month of the four linked cases of MM & Ors v SSHD and SS(Congo) v SSHD - challenging the notoriously restrictive financial requirements for partner and spouse visas that have resulted in misery and separation for thousands of British families since their introduction in July 2012 - we provide an update on the hearing as interveners in the case, and look ahead to the fourth anniversary of the Immigration Rule changes and beyond.
A small yet encouraging victory has been the Home Office’s acceptance to review the Guidance in relation to assessing of the best interests of children outside the UK. Currently, the best interests of children outside of the UK are routinely ignored or dismissed as irrevelant, even though the Secretary of State must adhere to the spirit of the duty to have due regard for the best interests of all children affected by immigration decisions, including those outside of the UK. This is not currently reflected in the Guidance to the Rules. This was a key issue we raised alongside the Office of the Children’s Commissioner (OCC) as interveners in the case. No new guidance has yet been published, but we eagerly await any change in policy in this regard.
Background to the Case
Over three days from 22 to 24 February, the Supreme Court – with Lady Hale, Lord Kerr, Lord Wilson, Lord Reed, Lord Carnwath, Lord Hughes and Lord Hodge presiding – heard evidence in the linked cases of four families challenging the minimum income requirement (MIR) required by UK citizens and settled residents to sponsor a non-EEA partner. [You can read more about the MIR on our blog or read the Office of the Children’s Commissioner’s report on the impact of the MIR on families with children, available to download here.]
Three of the cases were first brought by way of Judicial Review in 2013. AM and SJ are British citizens and MM is a refugee settled resident in the UK. All are unable to meet the Minimum Income Requirement (MIR) in order to sponsor their non-EEA spouse to join them in the UK. In these cases, Justice Blake held that the MIR did constitute an unjustified interference with the affected couples’ right to private and family life under Article 8 of the European Convention on Human Rights (ECHR). However, the decision was overturned by the Court of Appeal in 2015. Permission to appeal to the Supreme Court was granted in May 2015.
The cases were heard together with SS(Congo). This case of a British husband unable to sponsor his wife due to an inability to meet the financial threshold had previously been allowed by the First Tier and Upper Tribunals under Article 8 ECHR. However, the decision was overturned by the Court of Appeal on the basis that the appellant had not been able to demonstrate the "compelling circumstances" necessary to warrant a grant of entry clearance under Article 8.
Evidence was heard by both sides over the three days. Many affected families also attended the hearing to hear the evidence, coming from as far as Manchester and Penzance.
The claimants challenged the requirements of the Immigration Rules with respect to:
- The setting of the minimum income level at above the £13,400 level identified by the Migration Advisory Committee as the lowest maintenance threshold under the benefits and net fiscal approach;
- The purely economic basis for the MIR and lack of consideration of societal and moral factors;
- The requirement of £16,000 before savings contribute to rectify an income shortfall;
- The use of a 30-month period for forward income projection, as opposed to a 12-month period;
- The fact that the Rules disregard credible and reliable evidence of undertakings of third party support;
- The fact that the Rules disregard of the spouse's own earning capacity during the 30-month period of initial entry.
- The differential treatment of refugees who entered into relationships ‘pre-flight’ (who are not required to meet the MIR to sponsor a partner) as opposed to those who entered into a relationship ‘post-flight’ (who are required to meet the MIR to sponsor a partner), without due consideration of the situation in the country of origin.
The claimants also argued that the requirements were an unjustified interference with their right to respect for private and family life under Article 8 ECHR.
Discrimination and the Best Interests of Children
The Office of the Children’s Commissioner (OCC) and JCWI intervened in the case. This meant that we were able to give evidence to the Court, as well as submitting the report into the impact of the financial requirements on families with children as evidence in the case, which was commissioned by the OCC and researched and written by JCWI and Middlesex University.
While endorsing the claimants’ submissions, together with the OCC we additionally argued that children separated or at risk of separation from a parent and/or other family members as a result of the MIR are innocent victims of the Rules.
- The Rules are unlawful and the Secretary of State is in breach of her duty under section 55 of the Borders, Citizenship and Immigration Act 2009, which imposes a duty on the Secretary of State to consider the ‘best interests’ of children in all immigration decisions.
- This is due to the lack of consideration of children’s best interests in the drafting and formulation of the Immigration Rules and accompanying Guidance.
- Furthermore, the Rules and Guidance are not compliant with the section 55 duty in the way individual decisions are reached.
- As a result, the Rules have not been made in accordance with the law and amount of an unjustifiable interference with Article 8 ECHR (the right to a private and family life).
- The Rules as they currently stand also violate Article 14 (non-discrimination) in conjunction with Article 8 because of their disproportionate impact on women and members of certain ethnic minority groups.
- The discretion to grant leave to enter or remain outside of the Rules is an insufficient safeguard given that just 22 applicants have succeeded on exceptional grounds out of over 39,000 refusals since the Rules came into force.
Home Office Defence
Representatives for the Secretary of State rigidly defended her policy, arguing that there was no positive obligation for the State to admit applicants, and therefore no unlawful interference with their Article 8 rights, as well as stressing the special power afforded to the Secretary of State with regards to immigration policy. Furthermore, they argued that while the merits of the policy can be debated, it cannot be considered unlawful as assessments can be made which are compatible with Article 8. They also submitted that it is preferable that the requirements are predictable, thereby providing applicants with certainty and transparency, and that this would be undermined by the more flexible interpretation favoured by the claimants.
However, the Home Office representatives also appeared to accept the case to review the law on two important points:
- The assessment of the best interests of children outside of the UK,
- The ten year period required before a spouse can apply for indefinite leave to remain in the UK where entry was granted on exceptional grounds (as opposed to five years for those granted leave under the Rules).
Changes to these aspects of the Rules will rectify serious disparities in the Rules that add additional unfairness for many families. However, any change to the Rules or accompanying Guidance is yet to be seen.
Ultimately we must now wait for the judgment before there is any clear idea of what the future holds for families affected by the financial requirements. There are multiple grounds of dispute in the case, some of which may be upheld, while others are rejected. Given amount of material submitted by both sides, this is likely to take a number of months. In that time, the fourth anniversary of the rule changes on 9 July will have passed, with yet more families undoubtedly discovering that their plans to live together as a family must be put on hold. Furthermore, once the judgment is handed down, it will be seen how the Secretary of State responds.
While this is disheartening for many families experiencing separation, the issue has once again gained the attention of politicians and the media. This remains vitally important. Impacted families could consider sharing their story with local or national media and encouraging friends and family to write to their MP and ask them to raise the matter once more.
Political interest in the issue has also been revived with the passage of the Immigration Bill 2015/16 through Parliament. While this is on the whole a toxic piece of Government legislation, the Third Reading in the House of Commons provided an opportunity to briefly debate the Family Migration Rules, due to an amendment tabled by Liberal Democrat MP Alistair Carmichael to lower the MIR to reflect full-time National Minimum wage and to include third party support. While ultimately unsuccessful, with the Bill shortly due to return to the Commons from the House of Lords, pressure must be maintained for Parliament to review to Rules and their application. If this can be achieved in time for the judgment, there will be more concerted pressure on the Home Office to amend the Rules to reflect both the decision of the Court, as well as MPs and the constituents they represent.