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Theresa May - Stays Decisions on Financial Requirements for Spouses UKBA Statement on Minimum Income Judgement On 5 July 2013 the High Court delivered its judgment on a legal challenge to the minimum income threshold for spouses/partners and children applying in the family route. The Home Office has paused decision-making on some spouse/partner and child settlement visa and leave to remain applications to enable us to consider the implications of the judgment. The pause applies to applications made under Appendix FM to the Immigration Rules where the application would be refused solely because the rules relating to the minimum income threshold are not met, including where relevant the evidence requirements in Appendix FM-SE. The same approach is being applied to a small number of adoption cases which would be refused on this ground alone. Applications which meet the Rules or which fall to be refused on other grounds, such as requirements for English language or a genuine and subsisting relationship, will continue to be processed and decided as normal. A further announcement will be made in due course. Minimum Income Requirement for Spouses Judgement - a Curate's Egg
All parties to the judgement, will be appealing. Below extract from para 122, full judgement <>here . . . . Justification of interference 123. Although there may be sound reasons in favour of some of the individual requirements taken in isolation, I conclude that when applied to either recognised refugees or British citizens the combination of more than one of the following five features of the rules to be so onerous in effect as to be an unjustified and disproportionate interference with a genuine spousal relationship. In particular that it likely to be the case where the minimum income requirement is combined with one or more than one of the other requirements discussed below. The consequences are so excessive in impact as to be beyond a reasonable means of giving effect to the legitimate aim. 124. The five features are:
125. In reaching my conclusions I understand and have given weight to the wide discretionary area of judgment open to the Secretary of State in making economic and social judgments in the context of immigration. In particular I recognise that the figure of £18,600 was the lower of the two options identified by the Migration Advisory Committee in their report and represented the level at which a two person household would be completely ineligible for housing benefit. I accept that the policy aim was to identify a figure above mere subsistence and from which future recourse to any form of benefit would be made impossible for all practical purposes (thus savings of £16,000 excludes a person from any claim to income support). I further recognise that Parliament must have been aware of the minimum income figure when expressing its satisfaction with the Secretary of State's policies. 126. Nevertheless, to set the figure significantly higher than even the £13,400 gross annual wage effectively denies young people and many thousands of low-wage earners in full time employment the ability to be joined by their non-EEA spouses from abroad unless they happen to have wealthy relatives or to have won the lottery. This frustrates the right of refugees and British citizens to live with their chosen partner and found a family unless such modest earnings could be supplemented by any reasonably substantial savings, third party support or the future earnings or the spouse seeking admission. The executive can hardly be heard to say that the minimum adult wage is a manifestly inadequate sum to provide a basic standard of living over the subsistence threshold for a household without dependent children. 127. Moreover, the legitimate aim could not be to prevent whatever income related benefits a British citizen might be entitled to in their own right but only the additional costs arising by the admission of the foreign spouse. The foreign spouse is precluded by statute from claiming such benefits until they have achieved indefinite leave to remain at the end of five years. To set an income figure that deprives either spouse of the possibility of claiming housing benefit at the outset of the five year period is thus more austere than it needs to be to preclude unjustified recourse to public funds either during the five year period or at the end of it. Indeed an individual claimant and his spouse may have no housing costs at all or costs considerably below the assumed figure adopted by the Migration Advisory Committee. 128. The Migration Advisory Committee were clear in their advice that they were providing statistics about the level at which any family would have no recourse to means tested benefits of any kind. They were thus professionals in 'the dismal science' of economics and not making an assessment of when it would be justified to prevent a British citizen or refugee from being joined by a spouse on economic grounds alone. Their economic advice cannot provide a sufficient justification for the terms in which the policy is set. 129. Parliamentary approval of immigration policy is different in kind from primary legislation, where there the possibility exists to debate each clause of a statute and make amendments. In any event, Parliament may fail to achieve the right balance between the political interests of the majority and the human rights of minority. 130. When decision-makers and judges assess pre-July 2012 applications for adequacy of maintenance, particularly where the maintenance limits rise because of dependent children, any short fall in proven earnings can be met by evidence of capital resources. Thus, suppose a person with a dependent spouse and children needed to show an income of £15,000 to meet the income support subsistence level test then applicable could only show part-time earnings of £12,500; such a person could make good the difference, if at the time of the application, there were cash assets of £6,250 available to support the couple for the full thirty month period before next review. It was not necessary that savings of £16,000 first had to be shown before regard could be had to such savings. This approach will still apply to classes of people exempt from the new requirements. 131. If a similar approach had been permitted on the new £18,600 target, particularly if limited to the first twelve months before review, then if a claimant such as MM could demonstrate savings of £3,000 when added to his £15,600 income, he could meet the threshold to permit his wife to come to the UK. To inform a low earner that there is fairness and flexibility in the scheme because they can count any savings over £16,000 to add to their low earnings seems a rather cruel piece of mockery: how is a person earning the minimum wage likely to accumulate savings of £16,000? For a sponsor with no income at all that would mean £16,000 plus £18,600 x 2.5 years = £62,500. Moreover this requirement is additional to the statutory prohibition on access to income support or similar benefits whilst a person has limited leave to remain. I recognise that the Secretary of State's case is that she is looking for long-term economic viability of families after the spouse has acquired settlement five years after entry, but if so it seems to me that examination of the financial circumstances of the couple at the end of the five year period when the earning capacities of both parties can be taken into account is the time to make the assessment rather than to front load these substantial financial burdens on a self-sufficient but low-paid earner before the spouse is admitted. 132. Although the requirement of 30 month assessment preceded the July 2012 rules, the inflexible continued use of such a period, when the income and capital requirements have been so dramatically heightened, is not permissible when the potential consequences are so severe. All predictions of future events are somewhat arbitrary; even the most stable and well paid job can be lost at times of economic uncertainty or the most unpromising applicant find work. A twelve month period as was once the case, gives the family members a reasonable chance to settle themselves and absorb the expenses connected with the application itself: the application fee of £851, and the costs of preparing the documents and travel costs. 133. Ms. Giovannetti submitted that considerations of administrative convenience and expense militated against a review of status after 12 months, but in my judgment those are not sufficiently weighty factors when set against the consequences of the new rules. Immigration practice has long reflected a probationary period of twelve months in certain cases before indefinite leave to remain was granted on the basis of marriage, the present rules envisage a check after 2 _ years and a further examination after 5 years. The idea of post-entry checks on spouses and partners remains a principle of the rules. The question is when the first check should take place. If the rules permitted an earlier check on sponsors whose financial arrangements were marginal or depended on the support of others, the rigours of the consequences would be mitigated without any loss of the aim of long term self-sufficiency. Thus if there was doubt whether third parties would in fact deliver on the promised support, or a spouse would take the job they stated pre-entry they intended to take, the best safeguard is to inquire at an early period after entry rather than impose extravagant requirements for pre-entry income and savings over a thirty month period. 134. The issues relating to the difficulty of assessing third party support, have already been canvassed in the decision of the Supreme Court in Mahad. At that time, problems of predictability of the reliability of the undertakings of others was not considered a sufficient reason to prohibit them from being taken into account. I cannot see that the parameters of the debate have significantly changed during the process of the adoption of the new rules. Again, judges and decision makers in this specialist jurisdiction are well used to evaluating the reliability of claims of third party support, and if the surrounding data and the credibility of the relevant informant is insufficient to discharge the burden of proof on the applicant the case fails on the facts. 135. Moreover, administrative convenience falls to be evaluated in a context where the applicant has to pay a substantial fee for an entry clearance application and the preparation of the documents imposes additional costs. As immigration decision making resembles more closely a commercial service, the interests of the user are entitled to greater consideration than the convenience of the executive officer who apparently has difficulty in assessing evidence although this has been and will remain the essence of immigration determination. 136. I acknowledge the rules permit a wealthy relative to transfer capital to the sponsor to meet the rules. However, there is no reason why a sponsor with a parent or sibling in remunerative employment but without substantial capital resources should be prevented from relying on a standing order in his/her favour. Such an arrangement is likely to be a more practical means of financial support for the majority of the population. The respondent submits that there is no guarantee that promises are delivered on, but the knowledge that there will be checks after 1 year and/or 3 years and 5 years may well be an incentive to deliver and in any event in reality such support will probably only be needed until the couple establish themselves and the foreign spouse is able to contribute to the family budget. 137. However, it is the fifth factor set out at [124] above that I consider the most striking feature of the new scheme. To prevent a couple from having any regard to the future earning capacity of the spouse to be admitted for the first thirty months of the residence, strikes me as both irrational and manifestly disproportionate in its impact on the ability for the spouses to live together. On the evidence before the Migration Advisory Committee and the Secretary of State, the minimum income figures were geared to the needs of a family of two people, and it would be logical that the economic resources of both partners to the relationship should be taken into account to discharge those needs. Such empirical data as was presented in the applications indicates that men admitted as spouses had a better record than the resident population in accessing employment within twelve moths or so, although I accept that conclusions from such data must be limited. The data for female spouses was less compelling although in the past there may have been less need for them to contribute to the family budget than with a high minimum income threshold. 138. Although I have not accepted the claimants' case on gender discrimination, it is well established that despite many decades of equal pay legislation women workers tend as a group to earn less than men, the employment sectors, the greater use of part time and flexible working arrangements to accommodate other family responsibilities and such like doubtless reflect social reality. However the discriminatory impact of the new rules would be significantly reduced if the earning capacity of the female sponsor's spouse could be taken into account after July 2012 as it has always been previously. Thus Ms Javed might well be able to demonstrate that her civil servant husband who speaks English would be able to enter employment at a higher salary than she is able to and his contributions when combined with hers meets the threshold. Equally the encouragement of a female spouse of a male sponsor to enter the workforce of the UK shortly after arrival is likely to make a positive contribution to the legitimate aim of better integration. 139. The respondent's justification for the new rule is transparency and improvement of ease of assessment. Those are no doubt reasonable aims, but not if transparency comes at too high a price in terms of family re-union. Moreover, the aim of transparency is positively undermined by the exceptional circumstance policy to which regard is had at [153] and following below. The comparison between the Points Based System and its ever more complex precise code of requirements is inappropriate with regard to measures designed to regulate the admission of dependants and shape the way respect for family life is regulated. There is no human or constitutional right for a foreign national to study or work in the United Kingdom, and thus this is an area where the Secretary of State has a very wide discretion as to how to manage immigration. The contrast with permitting spouses and children of British citizens and refugees is notable. Both have rights to reside and rights to family life that the state must respect. The essence of the right cannot be impaired by measures designed to give effect to them and ensure that the consequence is not an undue burden on the tax payer. 140. In my judgment, the aim of transparency cannot justify an agglomeration of measures that cumulatively very severely restrict the ability of many law abiding and decent citizens of this nation who happen not to earn substantial incomes in their employment from living with their spouses in the land of their nationality. Transparency can be best achieved by clarity as to the kinds of documents required to demonstrate the relevant facts rather than a blanket rule preventing receipt of data that may well be sufficient and reliable. The most obvious way of proving the earning capacity of the spouse is a job offer. In the past one problem has been the timing of the offer with respect to the processing of the application, but there is no reason why historic failure to process applications speedily should frustrate the ability of a couple to live together; again in my judgment the answer lies in the discharge of the burden of proof and not an unnecessarily austere exclusionary rule. Here again checks after twelve months may well be proportionate and informative as that would afford a reasonable opportunity for the spouse with skills to have attended selection interviews and demonstrated requisite skills. 141. Moreover, both past practice in the administration of the rules and the survival of a number of instances in the new rules where the additional recourse to public funds approach is retained, belies the alleged difficulty or complexity in making an assessment of future economic prospects based on data before the Entry Clearance Officer. The experience of the Tribunal judiciary suggests that these are not inherently complex and imponderable questions; having a minimum income significantly above subsistence level identifies clearly what is to be achieved but the denial of legitimate means of being able to demonstrate that a couple will meet the minimum and be self -sufficient, is to require the means of proof to predominate over the right itself, and results in a disconnection from the legitimate aim of economic self-sufficiency and the promotion of integration. Summary of conclusions 143. The domestic law of the United Kingdom, inspired by the experience of Commonwealth jurisprudence in applying human rights, applies a more intrusive test in examining proportionality where the measure in question interferes substantially with a core human right such as is engaged in these cases. In such circumstances it inquires of the measures under scrutiny 'are they no more than are necessary to accomplish it?' (see paragraph [76] above citing Quila quoting Huang in turn applying Daly). I recognise that even with this refinement, the Administrative Court on judicial review is far from adopting a full blown merits review of policies that are the proper constitutional province of the executive. The court does not substitute its own view of what is preferable. 144. Nevertheless, the rights are of such fundamental importance and the effect of the five aspects on which I have focused attention are so intrusive, that I conclude that taken together they are more than is necessary to promote the legitimate aim. The substance of this claim is both the human rights of the sponsor claimants to enjoy respect for family life and the constitutional right of the British citizen to reside in the country of nationality without let or hindrance. From this perspective the application of the combination of the five factors to people in the position of these claimants is not merely disproportionate as a matter of human rights law but also an irrational and unjustified restriction on rights under the law relating to recognised refugees and the constitutional rights of British citizens. 145. I do not accept the claimants' case that the Secretary of State was required to adhere to the rule 281 (v) formula in all cases of entry clearance application by spouses of British citizens and recognised refugees. She was justified in concluding that greater resources than £5,500 per annum for a couple without children and adequate accommodation were needed in pursuit of the aims she has identified. It may be that the £18,600 minimum income without recourse to other sources of funding would be within the limits of the Secretary of State's margin of appreciation in setting the terms in which foreign sponsors can bring in their spouses and partners, even though this represents a radical departure from the norm in the European Union based on the Family Reunion Directive. 146. However, I conclude that this measure is disproportionate when applied to British citizens and recognised refugees. In particular, it is more intrusive in its restrictions on family life to ensure that couples are self sufficient at the time of the spouse's first admission, and are above the level of recourse to public funds at the end of the five year period when the spouse's application for settlement is being considered. 147. There are a variety of less intrusive responses available. They include:
148. It is neither necessary nor desirable in these applications to go further than this judgment does in identifying what might be a proportionate financial requirement. It will be for the Secretary of State if she sees fit to make such adjustments to the rules as will meet the observations in this judgment. My conclusions, if they prove durable, are equally designed to assist people in the position of the claimants and their families as to whether there is a reasonable prospect of success in making an entry clearance application, and judges of the First-tier and Upper Tribunals who will have the difficult task of determining on the basis of particular facts as found or are undisputed whether Article 8 requires the admission of the particular person. By contrast with decisions on deportation or decisions affecting children where the principles are now established and clear, the problems facing judges on appeal to decide on human rights in individual cases without some assessment by the higher courts of whether the essential package is a legitimate starting point would be formidable. Exceptional circumstances 150. I have already accepted this may be the case as far as the impact of the rules on children are concerned, because the approach of both decision makers and judges is governed by s.55 Borders, Citizenship and Immigration Act 2009 and the terms of the guidance issued thereunder, and the principles of Article 3 of the UN Convention of the Rights of the Child incorporated into all decision-making relating to the private life of the child for reasons explained in Maslov and ZH Tanzania. Together this provides a sufficient coherent framework of principle to enable assessment of when departures from the terms of the rules may be required to vindicate human rights. The recent experience of the Upper Tribunal in deportation cases is a case in point when the principles are clear and it is possible to evaluate the extent if any that the rules fail to give effect to them. 151. I further accept that this litigation has been conducted at a level of abstraction that means no individual adjudication can be reached whether the Convention rights of any of these claimants have in fact been breached. It may be despite my conclusions on the application of the five principles generally, this would have little purchase on the cases of Mr Majid and Ms Javed who may well be unable to substantiate any claim to self-sufficiency of their family after admission of their spouse whatever financial resources they may be able to demonstrate are available for them. MM may well be better placed to demonstrate breach of his human rights if the facts assumed to be true turn out to be so. 152. I recognise that even in an entry clearance case, on appeal a claimant can contend that the decision breaches human rights and this is a separate ground of appeal. 153. However, I am not persuaded that the arrangements where the Entry Clearance Office is able to refer a difficult case to the Secretary of State for advice on the application of the exceptional circumstances policy is sufficient to render the decision making process as a whole lawful and compatible with the European Convention on Human Rights. I would make the following observations in support of this conclusion:- i. By contrast to previous versions of the rules the current versions are intended to be exhaustive and conclusive statements of executive policy on all issues including the extent to which the right to family life can be subjected to proof of prior financial stability. There is substance in the claimants' contention that in so far as the immigration rules themselves claim to be Convention compatible and reflect the appropriate balance as to Article 8 rights the court should examine whether this is the case, rather than leaving the issue to exiguous discretion to depart from the rules. ii. In the field of applications for entry clearance by family members in particular claimants must know where they stand and what has to be established as it is of importance for people to plan their lives and decide whether they have an application worthy of consideration. The rare or exceptional circumstance criterion does not explain sufficiently or at all what the criteria are for people who have a significant degree of financial self sufficiency but fall short of the requirements of the rules. iii. The developing jurisprudence of the Court of Appeal makes clear that there is no doctrine of a near miss , namely that a narrow failure to meet the requirements of the rules can be cured in an Article 8 balance. The principle has hitherto been enunciated in cases of students and private life, rather than cases of core family life rights. The issued guidance appears to build on this jurisprudence and indicate that a family that can demonstrate income of £18,000 rather than £18,600 will not for that reason be considered an exceptional case. If so, it becomes more important for the Administrative Court to reach a conclusion on whether a general requirement of such an income level is itself compatible with Article 8. I have reached the conclusion that in conjunction with the other factors mentioned it is not. iv. The courts have recognised that economic and social policies require lines to be drawn somewhere and once drawn they need to be respected as part of the policy choice of the decision maker. This is so but immigration control is not an end in itself and only a means to promoting the legitimate aim of economic and social order, and other such aims. In any event, human rights adjudication does reveal cases where a claimant who can comply with all the rules save one but whose other circumstances generate a significant family nexus with the host state make the application of the bright line rule disproportionate. The case of Mrs Huang that reached the House of Lords was precisely such a case; she was too young to meet the dependent relative rule but following clarification of the law she was admitted for settlement. v. Where the terms of the policy under scrutiny are themselves so severe and inflexible as to be a disproportionate interference with an important right, the existence of an imprecise residual discretion to depart from the rule will not suffice to achieve convention compatibility. The European Court said so in its observations in O' Donoghue v United Kingdom (cited above at [68]). I accept that those remarks were in the context of restrictions on the right to marry whilst temporarily in the United Kingdom, but following Quila, the right of residence with one's spouse, enjoy cohabitation and family life and found a family resulting from such cohabitation is also an important right, and particularly important for citizens and refugees. vi. I agree with the conclusions of Turner J in Zhang that a discretion to depart from the clear terms of the policy did not cure the defects of the rule. I further agree with Sir David Keene's conclusion to similar effect in Bibi at [60] albeit his was a dissenting opinion on whether the pre-entry language restrictions are proportionate. In the version of the rules he was considering whether there was an exceptional circumstance exception by contrast to the present scheme. In either event to require claimants to identify a narrow class of exceptional reasons to depart from the mandatory provisions of the rules, when the combined effect of the rules themselves is disproportionate, at least in the case of British citizens and recognised refugees, does not redress the harm done by the rule. vii. The position in entry clearance cases is rather different from deportation or removal appeals where the application of the principles very much depends on the particular facts that can be teased out on a case by case basis by decision makers and judges on appeal. In an entry clearance cases the couple remain apart until the entry clearance is granted applying the criteria of the rules and supplementary guidance. As it is a requirement that the sponsor can demonstrate adequacy of home and maintenance over an appreciable period before the application, the parties will thus not be able to cohabit until the application is granted. A significant fee is paid for the privilege and a further fee is paid to lodge an appeal against a negative decision. Further costs are incurred if the claimant seeks legal advice for which legal aid is not provided and there are no clear criteria as to when an application that does not meet the income threshold of the rules as presently applied might succeed. The delay, cost and uncertainty of the process during which time the couple cannot live together all contribute to making the exceptional circumstances test inadequate to secure respect for Convention rights. viii. Indeed it is not impossible to discern precisely what the Secretary of State would consider to be the unusual case where the rules are not met but Article 8 requires admission. The focus is on the consequences for the couple of the refusal. In a refugee case, it may be possible to demonstrate that there are insurmountable obstacles to the couple living together elsewhere in the world, but otherwise British citizens will be told by the executive that if they want to live with their spouse they must abandon job, home, relatives and residence of their own and move elsewhere. ix. I recognise that there may be some circumstances where the character, conduct or immigration history of the foreign spouse and the economic circumstances of the couple in the United Kingdom are so dire that this was the foreseeable consequence of the particular marriage, but in the vast bulk of ordinary cases where the relationship is genuine and subsisting and there is no adverse history of the spouse to weigh in the balance, the imposition of such a stark choice is precisely what Sedley LJ described as indirectly sending the citizen into exile. I agree that in the broad generality of ordinary cases, the abandonment of the citizen's right is residence in order to enjoy family life with his or her spouse of an unacceptable choice, and a disproportionately high price to pay for choosing a foreign spouse in an increasingly international world. Part 6: Conclusions 155. Neither do I accede to the defendant's invitation to dismiss the claims without more as lacking in merit. To the contrary I conclude that there is substantial merit in the contention that the interference represented by the combination of the five factors in the family life of the claimants on the assumed facts is disproportionate and unlawful.
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