MM (Lebanon) and Others v The Secretary of State for the Home Department Master AF (Interested Party) Sheffield Asian Community Action Group (Intervener)

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Aikens,Lord Justice Treacy,Lord Justice Maurice Kay
Judgment Date11 July 2014
Neutral Citation[2014] EWCA Civ 985
Docket NumberCase No: C4/2013/2084, 2085 & 2086

[2014] EWCA Civ 985

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT

QUEEN'S BENCH DIVISION

MR JUSTICE BLAKE

CO85882012

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Maurice Kay, VICE-PRESIDENT OF THE COURT OF APPEAL, CIVIL DIVISION

Lord Justice Aikens

and

Lord Justice Treacy

Case No: C4/2013/2084, 2085 & 2086

Between:

The Queen on the application of

(1) MM (Lebanon)
(2) AM (Pakistan)
(3) SJ (Pakistan)
Respondents
and
The Secretary of State for the Home Department
Appellant
Master AF
Interested Party
Sheffield Asian Community Action Group
Intervener

Manjit Gill QC, Tony Muman & Navtej Singh Ahluwalia (instructed by J M Wilson Solicitors LLP) for the 1st Respondent

Ramby De Mello, Danny Bazini & Aftab Rashid (instructed by Bhatia Best Solicitors) for the 2nd Respondent

Ramby De Mello & Aftab Rashid (instructed by Britannia Law Practice LLP) for the 3rd Respondent

Lisa Giovannetti QC and Neil Sheldon (instructed by Treasury Solicitors) for the Appellant

Richard Drabble QC, Tony Muman & Ineza Hussain (instructed by RBM Solicitors) for the Interested Party

Satvinder S. Juss by way of written submissions for the Intervener

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Hearing dates: 4–5 March 2014

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Approved Judgment

Lord Justice Aikens
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I. The issues on appeal

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1. These appeals concern two British citizens, Mr Abdul Majid and Ms Shabana Javed, who (obviously) have the “right of abode” in the United Kingdom and Mr MM, who has refugee status and as such has the right to remain in the UK. All three are married to spouses who do not have the “right of abode”, who are not citizens of an European Economic Area state (“EEA”) and who currently live outside the UK and wish to come and live with their spouses here. For convenience only I will give those that have the right to live in the UK the label “UK partners” and the spouses who wish to join their UK partners the rather inelegant label “non-EEA partners”. On 9 July 2012 changes were made to the Immigration Rules which, in summary, created a requirement that a UK partner who wishes to sponsor the entry of a non-EEA partner must have a “Minimum Income Requirement” of £18,600 gross per annum and additional income in respect of each child who wishes to enter the UK. Various other new income and savings requirements were also introduced. The key question on this appeal is whether these provisions are unlawful as being a disproportionate interference with the UK partners' European Convention of Human Rights (ECHR) Article 8 rights. In effect Blake J held that they were. There are some subsidiary questions on appeal, the chief one of which is whether the provisions, which the Secretary of State for the Home Department (“SSHD”) accepts are indirectly discriminatory within Article 14 of the ECHR, can be justified.

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2. The Immigration Act 1971 (“the 1971 Act”), which came into force in January 1973, remains the legislative framework that defines who has a “right of abode” in the United Kingdom and, for those who do not have that right, creates the structure for making rules on how they might obtain it on either a temporary or a permanent basis. Thus sections 1(4) and 3(2) of the 1971 Act recognise that it is for the SSHD to lay down the rules which set out the practice to be followed to regulate entry and residence in the UK for people who do not have a “right of abode”. These Immigration Rules (“IRs”) are statements of administrative policy, despite the fact that they are laid before Parliament; 1 that is they are “an indication of how at any particular time the Secretary of State will exercise her discretion with regard to the grant of leave to enter or remain” 2 for those who do not have the “right of abode” in the UK. The IRs are voluminous and they change with dizzying frequency.

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3. There have long been restrictions on the right of entry into the UK of partners who do not have the “right of abode” in the UK and who are not EEA citizens. However, in this regard the IR changes as from 9 July 2012, after a “Statement of Changes in the Immigration Rules” had been laid before Parliament on 13 June 2012, are very significant. 3 The relevant amendments are contained in Appendix FM Family

Members Section E-ECP Eligibility for entry clearance as a partner, which I will call “Section E-ECP” for short. These provisions are set out in Appendix One to this judgment as are the terms of the “Guidance” that was provided for Entry Clearance Officers, published first in draft in December 2012 and subsequently in a final form. In Appendix Two I have set out sections 1(4) and 3(2) of the 1971 Act and sections 2, 3 and 6 of the Human Rights Act 1998 and section 55 of the Borders Citizenship and Immigration Act 2009 (“BCIA 2009”). In Appendix Three I have set out Articles 8, 12 and 14 of the ECHR as scheduled to the 1998 Act. Lastly, in Appendix Four I have set out the relevant provisions of Immigration Directorate Instructions on Family Members under the Immigration Rules
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4. The new rules stipulate that a UK partner who wishes to sponsor the entry into the UK of a partner who does not have a “right of abode” in the UK under the 1971 Act or any other independent right to enter and remain in the UK must have a “Minimum Income Requirement” of at least £18,600 per annum gross and an additional income of £3,800 for the first child and a further supplementary £2,400 income for each additional child who wishes to enter or remain in the UK. If the UK partner does not have the requisite minimum gross income, then to obtain entry of the non-EEA partner the UK partner must demonstrate having a minimum of £16,000 savings plus additional savings of 2.5 times the amount that is the difference between the UK partner's actual gross annual income and the total amount of income required. Of significance is the fact that neither the income of the non-EEA partner nor any promised third party support can be taken into account to calculate the UK partner's income or savings, save in limited circumstances. I will refer to this income and/or savings requirement compendiously as the “new MIR”.

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5. In R (on the application of New College Limited) v Secretary of State for the Home Department 4 Lord Sumption JSC said that the 1971 Act had “not aged well” and that it was now “widely acknowledged” to be “ill-adapted to the mounting scale and complexity of the problems associated with immigration control”. Three further statutes have added to the complexity of the problems associated with immigration control and are fundamental to these appeals. First, section 6(1) of the Human Rights Act 1998 (“ HRA”), which came into force in 2000, stipulates that it is “unlawful for a public authority to act in a way which is incompatible with a Convention right”. So the operation of the IRs made by the SSHD must be compatible with rights set out in the ECHR as scheduled to HRA. The three particular Convention rights with which these appeals are concerned are: the right to respect for private and family life enshrined in Article 8(1), Article 12 which enshrines the right to marry and found a family, but “subject to the national laws governing the exercise of this right”, and Article 14, which prohibits discrimination in the application of other Convention rights.

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6. Secondly, there is section 115 of the Immigration and Asylum Act 1999, (“IAA 1999”) under which a person subject to immigration control, including someone who is a partner of a person who has the right to remain in the UK is, in general, not entitled to welfare benefits until the immigrant partner qualifies for and is granted indefinite leave to remain (known as “ILR”) for which a minimum of 5 years lawful residence is needed, although the immigrant partner can obtain contributory benefits after paying National Insurance contributions for two years. Thirdly, there is section

55(1) and (2) of the BCIA 2009. This section has placed a statutory duty on the SSHD to discharge her function in relation to immigration, asylum and nationality, with “regard to the need to safeguard and promote the welfare of children who are in the United Kingdom”. The SSHD also has to ensure that services provided pursuant to arrangements which are made by the SSHD in relation to those three matters have regard to that need
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7. None of MM, Abdul Majid and Shabana Javed can satisfy the new MIR. Before Blake J they successfully challenged the amendments to the IR introducing the new MIR as being unlawful on Human Rights grounds. Blake J held that those amendments would amount to a disproportionate interference with the UK partners' Article 8 rights, which he characterised as the right to reside with one's spouse, to enjoy cohabitation and to found a family. However, he refused to grant the claimants any declaratory relief to that effect. Blake J dismissed the claimants' cases based on discrimination and Article 14 of the ECHR.

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8. On appeal the SSHD challenges Blake J's conclusion. The UK partners support it on the grounds the judge gave but also on a number of further grounds. The most important is that the new MIR imposed by the amendments leads to discriminatory consequences based on race, ethnic, cultural and national origins, gender (in the case of Ms Javed) and status, where the UK partner is a refugee or someone granted Humanitarian Protection but having only limited leave to remain in the UK. It is argued by the respondents that these discriminatory consequences cannot be justified for the purposes of Article 14 of the ECHR. In addition, the child AF was granted permission to cross-appeal to argue that the new MIR were incompatible with the statutory requirement of ...

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