One year on after the introduction of the harsh new family migration rules, which have caused wide-scale misery to families, a decision from Justice Blake offers some hope.
July 2012 saw the introduction of new immigration laws, which made radical changes to the immigration rules for family migration. The most significant and controversial change being that, under the new rules, a family has to show that its annual income is equal to or greater than £18,600. Previously, provided a family could show that its income was greater than a family in a similar situation on Income Support, then this was enough to demonstrate that they could maintain themselves adequately.
For many families, an almost equally high hurdle to the £18,600 figure has been meeting the onerous "specified income" rules. These rules narrowly define the types of income that can be relied upon to meet the magic £18,600 figure. Reliable third party support, job offers for the migrant applicant, and savings under £16,000 are all considered not to be "income" in terms of the Immigration Rules.
On 5 July 2013, the High Court delivered its ruling in the linked case of MM, R (On the Application Of) v SSHD [2013] EWHC 1900 (Admin). This litigation was brought by three individuals who challenged the compatibility of the new rules with human rights legislation.
Before looking at MM, its worth pausing to highlight the difficulties that satisfying the new rules caused the individuals at the heart of the case; as they contain themes that will be painfully familiar to many thousands of families similarly affected.
MM- A recognised refugee from Lebanon seeking a partner's visa for his wife
MM a Ph.D student is underemployed for his qualifications but earns £15,600 per annum. His wife, a Lebanese national, works as pharmacist in Lebanon, speaks fluent English and has a BSC. in nutrition. MM lives with his sister rent-free and his brother is willing to sign a covenant that he will meet the short fall between MM's earnings of £15,600 and the required £18,600. Neither his brother's covenant nor his wife's earning capacity constitute "specified income" under the Rules.
AM- A British citizen of Pakistani origin seeking a partner's visa for his wife and mother of his 5 British children
AM married his wife in Kashmir back in 1991, although the marriage was not recognised until 2006. The couple have been trying to secure entry clearance since 2002! Four of the couple's children live in the UK with AM; the youngest child lives in Pakistan with his mother. AM challenged the unfairness between the rules on maintenance for parents seeking access to a child and the rules that apply to partners who wish to be reunited with their children and the child's other parent. There seems to be here a discrimination against two parent families; which is surely not what the Tory leader, so called champion of families intended.
SJ- A British citizen of Pakistani origin seeking a partner's visa for her husband
SJ lives with her extended family in Birmingham, a city where jobs are in short supply, particularly for a young woman with no qualifications. If SJ leaves Birmingham to find work, she leaves behind her free accommodation with her family. SJ complained that the rules were discriminatory against Asian women on the grounds that socio-economic data demonstrates that this segment of society suffers from significantly notable lower rates of pay than others, notably men.
The Decision
In a very lengthy and carefully considered decision Justice Blake finds that the minimum income rules are disproportionate and unjustified were the sponsor is a refugee or a British citizen.
At paragraph 126 Blake finds:
"... 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 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."
In a decision, which will offer hope to so many families, he recognises the rights of British citizens to live in their home country and of refugees to live in their country of refugee.
He heavily criticises the inflexibility of the scheme and the fact that £13,400 a level identified by the Migration Advisory Committee was not selected. This level had been proposed by the Committee as it was close to the adult minimum wage for a 40 hour week. Further, the refusal to treat savings under £16,000, credible third party support and potential earnings of the applicant as income was also the subject of negative findings.
Helpfully, the judgment provides guidelines to decision makers in cases were the income requirement rules aren't met but one of the factors listed below applies; the ruling states that these cases should be allowed on human rights grounds.
The factors are:
(i) UK sponsoring spouse earns above the national minimum wage
(ii) Evidence is produced of reliable third party support
(iii) Reliable evidence produced that the foreign spouse will work in the UK
(iv) There are children who likely to be adversely affected by any refusal decision
Impact of the Judgment
For many campaigners, the judgment did not go far enough as it did not strike down the scheme itself. For the Government, a recent announcement has been that they are appealing the decision, and in the meantime, pausing decisions on applications were the guidelines may apply, so although the judgment does offer hope it may lead to more delay for families kept apart by the Immigration laws.
Finally, once again the pace of change in immigration law is fast and furious. This case demonstrates the need for all those making immigration applications to be aware not only of the Immigration Rules, but also of recent case law in order to ensure that the chances of success are maximised for your family's visa application.
For further information on how you can use this judgment to help with your case please contact Jacqueline Moore or any member of the firm's immigration team.