mm and ors case overview

Judgment in MM and Ors vs Secretary of State, Court of Appeal 1

BRITCITS OVERVIEW OF JUDGMENT - 11 JULY 2014

MM AND ORS vs SECRETARY OF STATE, COURT OF APPEAL

The CoA judgment yesterday took us all by surprise. Why this judgment has hit so hard is that it is

completely at odds with how the hearing in March seemed to go (review of hearing from page 5 of

this document). The unanimous decision to allow Secretary of State Home Department’s appeal is

unsettling. That so much of the MM evidence is not referred to is disconcerting. That the judges took

over four months just to say everything about the rules is lawful, is disrespectful to the thousands of

families who are victims of these rules, the government and now our judicial system.

Whilst the High Court judgment was lauded as a victory by pretty much everyone, I did not think

even that went far enough in addressing the problems with the rules especially as they impacted self-

employed, pensioners and Brits overseas. CoA on the other hand has gone to an extreme by stating

High Court was wrong to find anything at all unlawful about the rules – in its view there is nothing

unlawful about these rules. Bird in hand….

There is no acknowledgement by CoA of British citizens being able to go down the ‘Surinder Singh’

route which would negate the need to meet any financial requirements, pass the English test, pay over

£3000 in visa fees and would render the foreign partner with recourse to public funds. Economic

well-being and integration justifications for these rules, put forward by HO and accepted by CoA, thus

fall apart, as the rules only serve to cause inconvenience to British families to detriment of our

economy and public interest, with most severely impacted being non-citizen residents and refugees.

I’m left with the impression HO and judges had a decision in mind and just sought excuses to justify

their policy and judgment respectively, rather than objectively assessing the evidence at hand in order

to then reach a conclusion, in the process therefore ignoring the devastating impact on families.

Layman’s interpretation of CoA judgment below – do read the actual judgment and form own views http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2014/985.html

Issue at hand

CoA assessed main thing it was asked to rule on was whether the financial requirements represent a

disproportionate interference with Article 8 rights. The secondary question was to assess whether the

rules can be justified given SSHD accepts the rules are indirectly discriminatory (Article 14).

Financial requirements under assessment consisted of:

• Minimum income requirement of £18,600 + £3800 for 1 child and £2,400 for each additional child

• Savings determined by a formula of £16,000 + 2.5 x (income shortfall)

• Non-EEA partner’s income and third party support not allowed, except in limited circumstances

(I don’t know what these limited circumstances are)

CoA seemed to work to a very narrow remit, not addressing difficulties faced by self-employed, Brits

in exile, complexity of rules and repeated failings of ECOs, despite this being part of the MM

evidence. The CoA has ruled that the rules are not unlawful in relation to:

a) Human Rights Act:

• Art 8(1): Right to respect for private and family life, home and correspondence

• Art 12: Right to marry and found family as per national laws governing exercise of this right

• Art 14: Prohibition of discrimination on grounds such as sex, race, colour, language, religion

b) Section 115 Immigration and Asylum Act under which non-EEA partner has no recourse to public

funds until ILR obtained, although contributory benefits can be accessed after two years.

c) Section 55 to safeguard and promote the welfare of children in the UK


How the change in the rules came about

The judgment listed how the rules came about using HO’s evidence (my rant):

a) Old rules too complex and led to inconsistent decision making from ECOs. (no change here then)

b) Student and work visas changed (i.e. HO overhauling all of immigration system, messing it up for

everyone, families not being especially targeted).

c) Preventing non-EEA partners from accessing public funds was too difficult to administer

(families pay the price for HO not knowing how to more efficiently administer the welfare system).

d) Once non-EEA partner had ILR, they were ‘a considerable burden on the public purse mostly in

the form of working age benefits.’

(If concern is for non-EEA partner claiming benefits years down the line why not take their

earning capacity into account; why have end of probationary period coinciding with when the

partner is entitled to ILR, given claim is ‘considerable’ burden post-ILR only?)

e) Maintenance requirement fixed at basic subsistence level of Income Support didn’t provide enough

of an assurance that the couple would be able to support themselves financially over the long term.

(No one can be sure of the ‘long-term’ – even people in high paying jobs lose them!)

f) Lack of financial resources inhibit the migrant partner’s integration. (In trying to satisfy rules,

person in UK may end up working multiple jobs, relocating, kids in constant form of childcare –

and any free time spent on Skype – to the point where those in UK end up isolating themselves

from society and therefore govt in fact impinges on the UK person being able to integrate!).

£18,600 and savings

“Admittedly there is a total ban on the entry of non-EEA partners where UK partner

cannot reach the required minimum…appreciate that this ban could be life-long.” –para 147

CoA accepts £18,600 income threshold is result of research; exclusion of first £16,000 savings is

because that is the level at which a person ceases to be eligible for income-related benefits.

It deems there had always been a maintenance requirement in place; determining the level of it is not

its place. CoA also said UK not unique in setting such a requirement, stating UK does not have the

highest income threshold, Norway does.

There is no reference to MM evidence that Norway also has higher income levels in general or that no

other country in the evidence provided was higher than UK. Reference to Norway by way of a simple

currency conversion is a complete cop-out.

No consideration is given to nations with lower (USA) or no (Australia) income requirement. Strikes

me as akin to saying look we’re not as bad as Saudi Arabia when it comes to human rights – without

assessing whether Saudi Arabia is the country to be looking to for the setting of an example.

CoA appears to ignore inherent idiocy in the savings formula which means someone earning £17,600

(shortfall of £1000) needs £18,500 in savings. I’m not too clued up on benefits but common sense

suggests even if government has right to interfere with entitlement to benefits for a Brit based on

nationality of their partner, eligibility shouldn’t drastically change for someone earning £18,600 p.a.

with nil savings and someone on £17,600 p.a. with (say) £2,500 savings, all other things being equal.


Government research and discrimination

“All immigration law is inherently discriminatory” – para 155

CoA believes HO carried out an extensive and thorough research before changing rules; assessing pay

levels of non-EEA partners, undertaking consultations, commissioning MAC to provide an income

threshold. Judges accept at face value HO’s aims to tackle abuse, make rules fairer and clearer and

reduce net migration, and claims that rules are in interest of public policy and economic well-being -

legitimate aims in the pursuit of which any violation of HRA is considered to be justified, thus lawful.

Discrimination is justified on the grounds that SSHD undertook consultations, was aware of the

discrimination resulting from the rules, and therefore her decision to forge ahead was a conscious one

and therefore rational. This is possibly a reflection of our parliamentary and judicial systems because

CoA claims HO does not need to provide empirical evidence – it simply has to state it has considered

discrimination (even if all it actually does is acknowledge that the discrimination exists).

I understand why for the last two years SSHD and the three stooges have harped on about ‘rules

working as intended’. If they claim not to be surprised by the ramifications of their rules, then they

are also free to claim that it was a conscious decision and thus, ‘justified’.

I see no mention in judgment of individuals forced onto benefits because of these rules, where with an

in-country partner they otherwise would not need to claim, or be ineligible from claiming, benefits –

and the subsequent impact on public policy and well-being of both, the economy and affected

individuals - despite this also being part of the MM evidence.

It does not appear HO was required to evidence 1) These were areas of concern with the previous

rules 2) Whether research results justify the measures adopted 3) Why the rules ignore so many

consultation responses 4) That the rules achieve their stated aims.

CoA deemed it impractical and inappropriate to make provision for different groups within the rules.

Parliamentary scrutiny

According to the judges, the rules are a policy decision made by SSHD in her role following ‘proper

democratic process’. They had no qualms saying this despite acknowledging the rules were debated

‘to limited extent’ in both houses of parliament and thus reaching the absurd conclusion that the rules

therefore had (some) democratic endorsement and are a policy of ‘an elected government’.

This is in line with HO’s argument at the hearing, though then I thought they were being stupid to

defend the rules by saying SSHD put them in place simply because she can. I’m appalled that judges

accepted this line of defence, especially as:

• We did not elect this government. Lib Dems could just as easily have gotten into bed with the

Labour party and we would have had a different coalition government. Furthermore, the rules are

in complete contradiction to the election manifestos – which was pointed out in the MM evidence.

• Governments change every few years and SSHD’s more frequently. One person holding so much

power renders us vulnerable to their whims with the resulting uncertainty. For example, even if

one were able to choose who they fell in love with subject to immigration rules at the time, one

can’t be held to hostage for what the rules may be in the future, come time to marry, relocate etc!

• Some democratic endorsement does not mean sufficient. The motion in House of Lords was

withdrawn which is not a sign of endorsement, just how HoL operates. This was part of the

evidence submitted by MM at the hearing, also not mentioned by the judges.

• Joint Committee of Human Rights expressed concern over the manner the rules were brought in,

which again was also part of the MM evidence, and again, ignored by the judges.


Article 8, exceptional circumstances, 3rd party support, integration & partner earning capacity

“If policy is rationally connected to legitimate aim not for courts to say terms of policy

should be different.” – para 74

Case law overload. Points which stood out:

• Quila: people have right to marry and “to make a reality of [that right] by living together”.

Refusal to grant marriage visas to couple imposed their choosing to live apart, or live outside UK,

which is a “colossal interference with the rights of the claimants to respect of their family life…”

• Judges agreed rules in not permitting the foreign spouse to reside in the UK because of financial or

other requirements is an interference with Article 8(1) rights. However interference deemed

justified as SSHD responsible for part of economic and social policy.

• SSHD bound by Article 8 whether or not appropriate provisions within the rules themselves

• Exceptional circumstances: to be dealt with on a case-by-case basis and covered in the guidance.

(Guidance was issued nearly a year later and requires ECOs to only refer up those cases where

they think there is an exceptional circumstance. The ones where they don’t are not reviewed.)

• Judges said that because the decision to exclude third party support was not taken at a whim,

because it was ‘thought out’, excluding it is not irrational.

• Judges spoke of “rational conclusion on link between better income and greater chances of

integration”, so rules cannot be challenged. SSHD not required to provide any empirical evidence.

(Families integrate by necessity. Russian oligarchs who don’t hobnob with others in the

community are the ones not integrating. There was also no mention of an increased probationary

period hindering integration, nor that in attempting to earn a higher salary Brits find themselves

working long hours and thus unable to integrate in their own community.)

• Judges deemed it not irrational to exclude job offers of foreign spouse as there could be abuse, jobs

could be lost and “facts indicate that many more immigrants say that they intend to work than

actually get work on arrival in the UK.”

(How does HO track this - based on NINOs? Accuracy? If fewer working, but ineligible for

benefits, what is the issue? How many is “many”? What abuse is there from a spouse who is

legally allowed to work? Jobs could be lost by someone on £100,000 a year too! Obtaining NINO

takes several months; jobs hard to find in current economic climate, especially for those on visas

and an increasingly hostile environment towards migrants fostered by this government!

This claim by the govt is at stark contrast with their concerns over more immigrants working more

than say they will, what with barrage of illegal working and migrants steal our jobs propaganda.)

Other

• Armed forces: Judgment mentions at para 39, armed forces exempt from financial requirement

but this changed with effect 1 December 2013, yet no mention of the withdrawal. Perhaps judges

too can’t keep up with the “dizzying frequency” of changes in the immigration rules.

• Lady: Surprised at the use of the word ‘lady’ in para 94 where ‘gentleman’ would not be used for

a male counterpart. Woman, female more appropriate. 21st century – catch up judges!

View on judgment from MM lawyers: http://43templerow.co.uk/court-appeal-rules-family-migration-minimum-income-threshold/

Hearing in MM and Ors vs Secretary of State, Court of Appeal 5

BRITCITS OVERVIEW OF HEARING - 4 -5 MARCH 2014

MM AND ORS vs SECRETARY OF STATE, COURT OF APPEAL

Background to the MM case

In 2013, three (unrelated) families took the Home Office to court over the impact of the financial

requirements within the Rules. The hearing in High Court was in February 2013 with the judgment

coming out on 5 July 2013. The hearing was on the impact of the rules on citizens, residents and

refugees - with the judge seeming to be especially concerned about the impact of the rules on citizens

and refugees - one group that have the right to live here without let or hindrance and another, as

refugees, we have a responsibility towards. The judge suggested that individually each of the

requirements may be okay but put together with the first £16k of savings ignored, £18,600 so much

higher than minimum wage, third party support not allowed, credible job offers for non-EEA partner

disregarded, was too onerous.

http://www.bailii.org/ew/cases/EWHC/Admin/2013/1900.html

The Home Office appealed this and since 5 July 2013 has put on hold all cases where they say the

only reason for refusal is the financial or evidential requirements. At the Court of Appeal hearing in

March 2014, it came to light that over 3000 cases were on hold.

Court of Appeal, 4-5 March 2014 The two days in court were very interesting and lots of fun, despite the many references to case law

which meant not very much to those of us without the legal background to understand their

relevance. However it was evident from the beginning the difficulties faced by the Home Office in

trying to defend these rules.

Overall All (both sides and the judges) agreed that the rules are NOT compliant with Article 8.

I felt both days were very positive, and all indications seem to suggest that the panel of three judges

could see the rules failing on several fronts - especially as they impact British citizens and refugees;

former who have the right to live here 'without let or hindrance' and the second group as not really

having the option of going home or even exercising free movement rights.

No guarantees however, so whilst be hopeful and positive, hold off on the celebrations just yet.

What happens now?

Manjit Gill, the lead barrister pointed out to the judge the hold put on cases since 5 July 2013. The

judge promised that they would take less time than Justice Blake did. Other barristers on the 'good'

side who submitted evidence were Richard Drabble, Ramby de Mello, Tony Muman, Navtej Singh

Ahluwalia, Ineza Hussain and Aftab Rashid.

Indications are that HO will appeal any decision that goes against them, with a view to going to

Supreme Court. In my view, this would purely be an attempt to delay any negative press till after the

2015 election. BritCits is keen to dissuade the Home Office from this, possibly by bringing into the

public domain the amount of money Home Office has spent on legal fees.


Home Office

The Home Office’s main arguments fell within the following points:

1) 'Scheme as a whole' is Article 8 compliant, defining ‘scheme’ as the combination of the rules,

guidance, obtaining ministerial authority and legal proceedings at tribunals.

This is despite the original Statement of Intent suggesting SSHD wanted the rules to encompass all

article 8 features as a standalone document. It was also made clear during the hearing that the

guidance was only issued in October 2013 (over a year after the rules were in place).

On ministerial authority, evidence was provided to show Mark Harper had referred to only one case of

where he had exercised ministerial authority to grant leave outside of the rules under exceptional

circumstances (judge commented that this was evidence of just one exception in over a year of the

rules being in place). Refer to column 278WH

http://www.publications.parliament.uk/pa/cm201314/cmhansrd/cm130619/halltext/130619h0002.htm

One of the judges also pointed out that tribunals would apply Article 8 as Human Rights Act is after

all, the law!

The message I got is that the judges don't think it is right that several layers skip Article 8 hence

forcing people to rely only on the judicial system to apply the law.

2) Policy making falls within the remit of the government and therefore the court should not interfere;

that Justice Blake went too far.

This is true to an extent in that judges can't tell the government what the rules should be. However

they do and must, get involved if the rules are not lawful.

3) Judges to accept that rules had had 'more' than the normal level of parliamentary scrutiny.

MM side Three clients involved, so three barristers spoke addressing many very relevant things including:

1) Irrelevance of the cases referred to by the Home Office to this situation (often declared by Home

Office itself as not being 'material'!)

2) Citing cases justifying the courts getting involved and that Justice Blake did not in fact go far

enough.

3) That not one refusal letter showing exercising of article 8 by ECOs had been seen.

4) ECOs spend only 6-12 minutes making a decision, questioning why therefore were application fees

so high and only increasing; and how could a situation really be assessed in such little time with

clearly a tick-box exercise being used.

5) Citing cases showing the rigidity of the rules as well as their incorrect application e.g. someone

below the threshold by £0.69 per week was refused a visa; savings of £15,999 completely ignored,

overtime disallowed even though rules allow for it, lowest payslip annualised using statutory sick pay

received for 1 week out of the 6 months even where the total annual salary was over £18,600.

The government's response on cases such as the £0.69 shortfall in income being refused a visa is that

there is no near-miss principle in the rules [translation:common sense not allowed].

6) Section 55 i.e. best interest of child clearly not being considered.


7) That Brits were being forced into exile; families were breaking up; irrational that so many felt only

route open to family reunification was going down the Surinder Singh route available under EEA

regulations, to achieve the aim of settling in the UK.

8) 30 month probationary period too long and intrusive.

9) Reminder to court that while minimum income threshold was one for the government to set, court

retains obligation to rigorously test that the measures adopted are proportionate.

10) Non-EEA spouses have no recourse to public funds and Secretary of State has been taking

undertakings from sponsors that should there come a time when migrant spouse has recourse to public

funds, sponsor would reimburse. This therefore suggests there is no drain on the public purse.

11) These weren't sham or forced marriages affected; the right to marry, co-habit and raise a family

were a fundamental and constitutional right, therefore any interference must be justified.

12) Integration as a reason for the rules not right, as rather than help people fit into society, they were

keeping couples apart, with 50% of workforce unable to meet income level and 122/401 occupations

earning on average less than £18,600. Huge issue as in the Quila case, it was clear that an 18 year old

would reach age 21; here some may never be able to meet £18,600. This level of interference is

therefore disproportionate and not the least intrusive one to adopt to achieve stated aims, given 3rd

party support also excluded.

13) That the rules were not subject to sufficient parliamentary scrutiny, referring to the evidence for

this as Hansard records and letter from the Chair of the Joint Committee of Human Rights to SSHD: http://www.parliament.uk/documents/joint-committees/human-rights/Letter_to_SSHD_May_immigration_rules_110711%29.pdf

14) That there was a mismatch between the assumptions forming part of the £18,600 recommendation

put forward by the Migration Advisory Committee, which included £6,000 for accommodation yet the

income requirement was not lowered where it was demonstrated that applicant had mortgage-

free/rent-free accommodation available to them.

15) That there are further barriers to entry for those currently overseas, even where they may have

been earning over £18,600, if they wish to return home with their non-EEA partner. This is because

the guidance requires them to also have a job offer in the UK satisfying the £18,600 threshold.

Judges The panel of three judges asked questions / made comments to confirm their understanding of the

arguments being made, over the two days. Memorable ones:

1) In response to HO saying that there was guidance on leave to be granted outside of rules on article

8 grounds, one of the judges pointed out that the rules clearly said that if the application failed to meet

the financial requirements, it must be refused.

2) A judge said that there must be a balance of interest towards community in terms of the cost and

benefit to public purse, and the interest of a smaller and specific group. The Home Office response to

this was that the courts should take a less intrusive approach, citing the example of cigarette vending

machines where commercial considerations were balanced with those of the individuals (I was a bit

lost on the relevance of this example).

3) Judges initially thought only thing being discussed is whether Article 8(2) applied, but HO side

contested this saying they did not recognise the right of citizens under Article 8 to live in UK with

their spouse, and judges seemed taken aback by this. HO suggested citizens could go live with their

spouse overseas. HO later gave example of British-Australian couple who had spent several years


living in Australia but now were ‘choosing’ to move here. According to HO, this family should be

treated less favourably as they were making a choice to relocate, stating there is "no general right to

live in country of choice".

4) Judges sought and received clarification that the Home Office was not distinguishing between the

impact of the rules on citizens, refugees and others settled in the UK.

5) When the Home Office said that reach of article 8 is primarily for the Strasbourg court to develop,

one of the judges bellowed "...but this is fundamental Article 8 stuff. There can't be anything more

fundamental than living with your wife and children." (Yes, quite sexist, but you get the gist!)

6) The Home Office cited global examples of restriction being applied to the visa applicant being

allowed to live in the country of their partner. However one of the judges pointed out that the cases

being cited were from the point of view of the applicant, however the sponsor's immigration status

was not contentious. The Home Office agreed and said they were looking at the immigration status of

the applicant. The judge immediately pointed out that under the rules in place in the UK, "the income

requirement applies to the sponsor not applicant" (suggesting therefore that it’s the sponsor –

potentially British – who is essentially subject to immigration control). This could elicit no response

from the Home Office, other than that the Home Secretary intended the rules to take into account

article 8, but that this is not a guarantee, citing the case of Huang.

7) The Home Office attempted to defend the rules not taking into account income from job offers

extended to the non-EEA partner by saying 'a guaranteed job offer is not binding'. The judges weren’t

having any of this, with one of them barking “If it's a guarantee it's guaranteed, so which is it ?” The

Home Office ummed and ahhed, trying to wriggle out of this by saying a job offer cannot really be

verified, but that even if such a job offer were to be verified as genuine and reliable, one would expect

the job could be lost (to be fair, this does apply to any one of us!) going on to state this is why even a

British citizen sponsor is required to evidence employment over a period thus demonstrating stability.

The Home Office said that non-EEA spouses with job offers could come in under the Tier 2 route.

However the judge did not let this go, asking why could the assessment of genuine jobs as undertaken

under Tier 2 not be extended to spouses under the family route. He said he was raising this point in

response to the Home Office attempting to justify job offers to foreign spouses being excluded as

evidence of income. The Home Office responded to this by saying "I'm not explaining why it's not

but explaining why the Secretary of State is allowed to exclude this, as there are substantial risks and

uncertainties".

This was essentially the Home Office’s response to most things - i.e. we're allowed to do this and so

we do.

8) Integration is another point the Home Office uses to justify the rules. A judge therefore asked the

Home Office: "So you're saying it's easier to integrate if you're more affluent than if you're poor." HO

side: "Yes."

Pretty damning response which drew gasps from those seated in the public gallery.

The MM lawyers have provided a more technical overview of the hearing, found here:

http://43templerow.co.uk/affluent-people-likely-integrate-better-poor-people/

mm and ors case overview

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