Archives For Administrative Court

refugee action

The present Government has declared its intention to create a ‘hostile environment’ for migrants. True to its word, the Go Home vans, the ‘papers please’ raids on public transport hubs, the targeting of foreign students, the increasingly demented bureaucracy of the immigration rules and the harsh family migration rules are all delivering on that pledge. Perhaps as part of that campaign, Theresa May decided in June 2013 to maintain a freeze on the level of support for destitute asylum seekers in the UK.

The High Court has now held in the case of R (On the Application Of Refugee Action) v The Secretary of State for the Home Department [2014] EWHC 1033 (Admin) that was an irrational decision that abysmally failed to take into account the real needs of that destitute group of vulnerable individuals. Continue Reading…

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In Hiri v Secretary of State for the Home Department [2014] EWHC 254 (Admin) the Administrative Court found for the Claimant in an application for Judicial Review of the Secretary of State’s decision to refuse naturalisation on grounds of ‘good character’. The judgment provides useful judicial comment as to how the Secretary of State must approach assessments of an applicant’s character by reference to her policy and otherwise. The Secretary of State’s policy on ‘good character’ has undergone several iterations since the justiciable decision in this case; however, the utility of Mrs Justice Lang’s remarks reach beyond the relevant policy in Hiri and bears application to the Secretary of State’s broader approach to these cases. Continue Reading…

What, the rotten vegetables have run out?

An important recent case slipped under my radar last year, mainly because it has not been publicly reported on one of the publicly accessible case law repositories like BAILII. The case is R (on the application of Jasbir Singh) v Secretary of State for the Home Department [2013] EWHC 2873 (Admin) and it addresses the ongoing problems of delays and routine breaches of the Civil Procedure Rules by the Home Office in judicial review claims. It also has important implications on whether to ask for expedited consideration.

If the judgment becomes publicly available I will post a proper link [UPDATE: here you go], but for now I’m stuck with quoting parts of the judgment. It is on Westlaw for those with access.

Continue Reading…

procrastinate

In the week before Christmas, at a time when national procrastination levels are at an annual high, the Home Office has had another warning about the need to get on with things when people are locked up.  Hot on the heels of JS (Sudan) v SSHD [2013] EWCA Civ 1378 (Free Movement report here) the High Court again held detention unlawful in an automatic deportation case where the Home Office failed to make much of an effort to consider whether the detainee should be deported. Continue Reading…

Update on Home Office appeal against spouse minimum income judgment

I’ve had quite a few queries asking for updates on the spouse minimum income case, MM & Ors v Secretary of State for the Home Department [2013] EWHC 1900 (Admin). The challenge to the rules essentially succeeded in the High Court but the Home Office have appealed to the Court of Appeal (blog post: “High Court finds minimum income rules disproportionate and unjustified“). Sanjeev Sharma of JM Wilson Solicitors in Birmingham is the leading solicitor in the case and the Home Office appeal in the Court of Appeal is to be heard between 3 and 5 March 2014. Judgment is likely to come some time after that.

[UPDATE: blog post on how the hearing went here]

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Spirited away

Colin Yeo — 

The harsh reality of immigration law enforcement is dramatically exposed by the facts of the case of R (on the application of Shaw & Anor) v Secretary of State for the Home Department [2013] EWHC 42 (Admin). In this case a Jamaican woman and her five year old son who had been resident in the UK since 2002 and since birth in 2005 respectively were detained at the airport without warning when they attended there as requested. They were then bundled onto the first flight to Jamaica.

Continue Reading…

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It is finally almost upon us: the transfer of judicial review claims from the High Court to the Upper Tribunal will take place on 1 November 2013. In addition, applications for permission lodged after 9 September 2013, including those where permission has been refused on the papers and oral renewal is pending, will also be transferred. Continue Reading…

Divided Families day of action

Divided Families day of actionFollowing the All Party Parliamentary Group on Migration’s report published on 10 June 2013 – covered on Free Movement earlier last month - the ‘new’ family migration rules have been debated twice in Parliament.  First, within a Westminster Hall debate on 19 June 2013 (Hansard & video footage) and more recently, in the House of Lords on 4 July 2013 (Hansard & video footage).  The latter was rather ominous, as we now know, that was the day before Mr Justice Blake’s judgment in MM & Ors v SSHD [2013] EWHC 1900 (Admin) handed down on Friday in relation to the income threshold of £18,600 and covered on Free Movement here.

In the first debate, numerous references were made to the fact that the minimum wage amounts to a gross annual income of £12,850 or thereabouts – well below the current threshold in the Rules of £18,600.  In addition, that the average wage in both the private and the public sectors is around £13,000 to £14,000.  The innumerable difficulties experienced under the new rules were described as “perverse outcomes” and comparing the new rules with the old, Sarah Teather, Liberal democrat MP for Brent Central, gets is spot on:

The first thing that is very apparent about the new rules is that they represent a distinct philosophical shift in approach from the old rules. The system used to be tilted in favour of family life, subject to certain basic conditions being met, such as the ability to support a spouse coming into the UK and the ability to meet a basic income threshold, which was pretty much tantamount to a basic income threshold that we would expect around income support levels. Now, the system is tilted entirely in the opposite direction, and against family life, unless someone can meet certain requirements to demonstrate that their spouse who is coming into the UK is desirable in some way and meets some extra criteria. So rather than having a system that was very much about keeping families together, the system now is about serving an overall objective on immigration policy, with family life being significantly relegated in importance. Of course, it is not only family life that is being relegated in importance, but relationships, children’s best interests, basic human compassion and a certain level of common sense.

(…)

Why are the rules being so rigidly and inflexibly enforced? It is because income probably has nothing to do with it. It is not really about trying to prevent a burden on the taxpayer; it is actually about the Government trying to demonstrate that we are reducing the number of foreigners coming into the UK. That is driving it. If anything else were driving it, it would be implemented in a far more common-sense way, there would be much more flexibility around it, and it would not have been set at a level to keep out as many people as possible.

If anything else were driving it, the Rules would simply have not been changed…

In respect of the new elderly dependent relative rules, these are described as a ban masquerading as a rule” and the powerful evidence from the British Medical Association was repeated in relation to the impact of these on consultants and senior doctors, many of whom are second-generation South Asian, and upon whom the NHS is heavily dependent.

The momentum was carried over to the House of Lords debate which took place last week.  Many many passionate contributions were made.  Including this particular outlook from Lord Taylor of Warwick :

“No blacks, no Irish, no dogs”; that was the sign in many windows in Britain in the late 1940s when my father was looking for accommodation. Growing up in Jamaica, he had thought of Britain as the mother land. After fighting for the British Army in the Second World War, he was shocked to be asked, when he came to Britain, when he would be going back home to the Caribbean. But after scoring a century for Warwickshire County Cricket Club he changed overnight from being described in the local Sports Argus as a “Jamaican immigrant” to “local Brummie hero”.

Let us fast forward to August of last year. Instead of racist signs in windows, millions of British TV viewers and thousands in the Olympic stadium cheered a Somali immigrant running to double Olympic gold. What was also significant was that the man from Mogadishu, Mo Farah, was wearing a British vest. Today, many of Britain’s high flyers in public life, business, entertainment and sport are from immigrant backgrounds. This is why the all-party parliamentary group report is so important. It is not an inquiry just about a minority group; it is about the Britain of the future.

To both debates, the Home Office’s representatives (Mark Harper, Immigration minister in Westminster Hall debate and Lord Taylor of Holbeach, Parliamentary Under-Secretary of State, Home Office) very much followed the same mantra:  the new rules are there to safeguard against abuse and to save the tax-payers from sponsoring other people’s family member coming to the UK.

As if from a parallel universe, we are told by Lord Taylor of Holbeach that:

The new family rules are intended to bring a sense of fairness back to our immigration system. The public are rightly concerned that those accessing public services and welfare benefits have contributed to their cost. The changes we have made are having the right impact and they are helping, I hope, to restore public confidence in the immigration system.

The rules themselves were not struck down as unlawful by Mr Justice Blake in MM & Others and instead a variety of less intrusive responses were identified as being available [Paragraph 147 of judgment].  These include:

  • Reducing the minimum income required of the sponsor alone to £13,500; or thereabouts;
  • Permitting any savings over the £1,000 that may be spent on processing the application itself to be used to supplement the income figure;
  • Permitting account to be taken of the earning capacity of the spouse after entry or the satisfactorily supported maintenance undertakings of third parties;
  • Reducing to twelve months the period for which the pre estimate of financial viability is assessed.

It remains the case therefore of maintaining pressure upon the government so that the SSHD heeds the numerous observations made by Mr Justice Blake and makes the necessary adjustments to the Immigration Rules as a matter of urgency.

Tomorrow is the Divided Families Day of Action, which will take place in London.  It’s already been a year since the new rules were introduced and on the first anniversary, Migrants Rights Network, BritCits, JCWI, the Family Immigration Alliance and others have organised two main events:

  • Afternoon demonstration outside the Home Office with speakers and street performers – 4pm – Home Office, 2 Marsham Street, London SW1P 4DF
  • Evening meeting in Parliament chaired by Baroness Ruth Lister bringing together campaigners, supporters and parliamentarians to hear about the impacts of the new rules.  The meeting will welcome valuable supporters including Maggie Atkinson, the Children’s Commissioner for England, and will be a chance for families to share their stories and build the campaign for a change in the rules – 6pm – Parliament, Committee room 10, London SW1A 0AA

Hope to see you there.

United by Love - Divided by Theresa May, JCWI Campaign

United by Love - Divided by Theresa May, JCWI Campaign

United by Love – Divided by Theresa May, JCWI Campaign

Almost exactly a year after they were first introduced, Mr Justice Blake sitting in the High Court has in a lengthy, complex and very carefully considered judgment found that the controversial immigration rules requiring a minimum income of at least £18,600 for spouse visa applications are ‘unjustified and disproportionate’ where the sponsor is a refugee or a British citizen.

The case is MM & Ors v Secretary of State for the Home Department [2013] EWHC 1900 (Admin). At paragraph 126 Blake J holds as follows:

“…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.”

Blake J observes that British citizens have ‘a fundamental right of constitutional significance recognised by the common law’ to live in their home country but that for many applicants (estimated at around half the British population, in fact) if they wish to marry and live with a foreigner the rules require them to leave their own country. The consequences of this are considered by the Court to be so excessive in impact as to be beyond a reasonable means of giving effect to the legitimate aim behind the new rules.

Similarly, recognised refugees have not ‘chosen’ to live in the UK and make it their country of residence. They have been forced to leave their own country. To force a refugee to make a choice between marrying their partner of choice or leaving their country of refuge is simply unreasonable.

The absence of any flexibility in the scheme and five aggravating features of the rules contributed heavily to the court’s conclusion:

i. The setting of the minimum income level to be provided by the sponsor at above the £13,400 level identified by the Migration Advisory Committee as the lowest maintenance threshold under the benefits and net fiscal approach (Conclusion 5.3). Such a level would be close to the adult minimum wage for a 40 hour week. Further the claimants have shown through by their experts that of the 422 occupations listed in the 2011 UK Earnings Index, only 301 were above the £18,600 threshold[16].
ii. The requirement of £16,000 before savings can be said to contribute to rectify an income shortfall.
iii. The use of a 30 month period for forward income projection, as opposed to a twelve month period that could be applied in a borderline case of ability to maintain.
iv. The disregard of even credible and reliable evidence of undertakings of third party support effected by deed and supported by evidence of ability to fund.
v. The disregard of the spouse’s own earning capacity during the thirty month period of initial entry.

At paragraph 128 Blake J deals rather neatly with the argument that the level of income specified in the rules was derived from advice from the Government’s Migration Advisory Committee:

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.

The court rejected the argument that the new rules were discriminatory in nature, also rejected the argument that the rules were unlawful because they failed to allow for any assessment of the best interests of affected children and in effect upheld the income rules with respect to foreign national sponsors settled in the UK by choice. Blake J declined to strike down the rules as generally unlawful: the judgment is in theory only concerned with the direct impact on the particular claimants in this case. Further, the judgment does not quibble with the principle that a specific minimum income rule is potentially lawful, and the judgment certainly does not open the door to those without means to sponsor spouses and children to come to the UK and claim public funds.

However, the reality is that many, many other applicants are British citizens or refugees with enough money so to avoid resorting to public funds but not enough to meet the £18,600 rule for a sponsor’s earnings. This judgment offers hope that they will soon be able to live with their loved ones in the United Kingdom.

No 5 Chambers have already posted up a piece on the judgment and outline its practical effect:

Although the court did not strike down the rules as such, its declaratory judgment is a green light to foreign spouses who previously thought they had no prospect of being allowed to live together with their spouses in the UK to apply for permission to enter. After this judgment, many are likely to succeed in being allowed to enter under Art 8 of the European Convention on Human Rights even though they cannot satisfy the harsh requirements of the rules especially if, for example, the UK sponsoring spouse earns above the national minimum wage, there is reliable ‘third party support’, there is reliable evidence that the foreign spouse or partner will be working in the UK, or where children are likely to be affected so that is not in their best interests for the foreign spouse to be refused entry.

The list of potential ways of showing sufficient funds is derived from paragraph 147 of the judgment. Anyone previously refused and considering a fresh application or with an upcoming appeal who does not meet the terms of the current rules should aim to demonstrate as clearly as possible that their family income will satisfy these suggestions.

The judgment will come as a huge relief to the thousands of British and refugee families separated by these severe rules. It may even come as a relief to the Government, given the growing chorus of criticism in local and national media: what a result, to be able to look tough on immigration, blame the judges, escape the consequences of the policy and avoid the embarrassment of a climbdown.

Interestingly, there has been no knee-jerk condemnation of the judgment and the Home Office state they are pausing consideration of affected cases. This holds out at least a little hope that the Home Office will not actually appeal this one.