Archives For Article 8
It is sad when a judge tasked with deciding whether a British pensioner should live out his last days with his wife or without comments that
this was a very run of the mill case
Maybe for the judge. In which case the judge should consider his or her position as a judge. It certainly is not ‘run of the mill’ for those affected. Unfortunately, this patrician insouciance when determining other people’s lives infects many who work in immigration law.
In this case Cranston J goes on to comment that the pensioner concerned only “relatively recently became a British citizen”. He is but a ‘Plastic Brit‘, as The Daily Mail would say.
Human rights medical treatment expulsion cases are perhaps some of the most stark, most difficult and most challenging cases faced by a human rights lawyer. They concern life itself and will often involve a miserable, painful death if unsuccessful. The claimant and his or her family will be understandably desperate to succeed.
Politicians, civil servants and even judges characterise these cases as ‘health tourism’ and reply that individual cases are very sad but the NHS cannot provide universal health care for the entire world.
Human rights lawyers instructed by those reliant on medical treatment in the UK who resist removal face the difficult task of attempting to achieve a good outcome for the client in a very hostile environment amid some very unhelpful case law.
However, recent developments offer hope to some individuals. Continue Reading…
The Court of Appeal has held that a different test applies to children in human rights health cases. These difficult cases involve a person seeking to remain in the UK in order to receive life-saving medical treatment not available in his or her home country. The recent case of Rose Akhalu is one well known example and we discussed this type of challenge recently here on Free Movement.
In a new judgment, R (on the application of SQ (Pakistan) & Anor) v The Upper Tribunal Immigration and Asylum Chamber & Anor  EWCA Civ 1251 the Court of Appeal holds that the Article 3 high test of exceptionality does apply in cases involving children, but that the threshold for meeting that test may nevertheless be lower: Continue Reading…
Theresa May spent over a year saying her new immigration rules would weaken Article 8 rights for “foreign criminals” but conceded the point within a day at the Court of Appeal.
MF (Nigeria) v SSHD  EWCA Civ 1192 makes clear that the Immigration Rules governing deportation now provide a ‘complete code’ for the Article 8 rights of foreign criminals. But they do not change the substantive law relating to Article 8 proportionality assessments and do not create a legal test of exceptionality for succeeding where the Rules are not met.
Many migrants and their families get caught in a situation where they apply to the Home Office for permission to stay, are rejected but then are unable to appeal the decision to the immigration tribunal. This has long been a problem (‘Refusal with no right of appeal revisited‘) but is becoming even more acute given the terms of Appendix FM and the huge number of arbitrary refusals it is generating.
Although it may well seem counterintuitive, a good outcome can be a formal removal decision from the Home Office. Continue Reading…
The case of Rose Akhalu (health claim: ECHR Article 8)  UKUT 400 (IAC) offers a glimmer of hope to some migrants dependent on health care in the UK facing removal. These cases can involve people being sent to their country of origin to die an avoidably early and unpleasant death. It is an extraordinarily difficult and emotive subject and has been covered here on this blog before (GS (India) and medical treatment cases). Continue Reading…
Following 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  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.
The case is MM & Ors v Secretary of State for the Home Department  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.
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.
As of today the full right of appeal against refusal of a visit visa sponsored by a family member in the UK has been abolished. Combined with the recently announced pilot of £3,000 ‘bonds’ payable for visitors to the UK, it is clear the Government is making it increasingly difficult for visitors from certain countries, principally in south east Asia and Africa, to visit relatives here in the UK.
Family visit appeals
The Government’s view of family visit appeals is that they are needless and that a simple re-application with the right documents will be sufficient where there is a genuine case. Anyone who thinks this clearly has not spent a lot of time reading Entry Clearance Officer family visit refusals from posts such as Accra, Islamabad, Manila, Delhi or Lagos. ECOs regularly refuse visas for the most absurd reasons and once a person has been refused once it is a matter of routine to refuse future applications.
The full right of appeal against decisions made from today onwards may have been scrapped, but an appeal can still be pursued on human rights or race discrimination grounds. Given that the Home Office has long argued that family visits are a perfectly good family life alternative to residence in the same country, it may be hard for officials to argue now that family life is not engaged where a child wishes to visit a parent or a parent a child, whether the child is adult or not.
There is also the old tribunal case of Anand Ramsew v Entry Clearance Officer, Georgetown (01/TH/2505) 24th October 2001, in which Dr Storey emphasised that family visit appeals involved elements of Article 8 and that care should be taken in determining such appeals.
It would seem that all that is required for the right of appeal to be triggered is that human rights are engaged in some form, a relatively low threshold. This would enable the tribunal to make potentially helpful findings of fact even if the appeal ultimately failed on human rights grounds.
Race discrimination is rarely argued in the immigration tribunal because the tribunal itself has made it virtually impossible. The blatant racial discrimination exposed by the Chief Inspector of UKBA against Pakistanis could never have emerged through the tribunal system, which is timid and toothless. Similarly, the current secret list of countries against whom racial discrimination is authorised, made in a secret and unpublished ministerial order, seems highly unlikely to ever be challenged by means of the immigration tribunal.
Judicial review as an alternative
If the human rights appeal route is unsuitable or becomes so, judicial review against family visit refusals is likely to become commonplace. This is hardly a time or cost effective solution, but where re-applying has been tried it may be the only way for some individuals to challenge a visa refusal.
All immigration judicial reviews are being transferred into the Upper Tribunal, so if lawyers can streamline their processes the abolition of appeals may simply lead to the First-tier Tribunal being bypassed as a means of challenge against ECO decisions.
If immigration bonds are introduced this will be a further major obstacle to visits to the UK from certain countries. Firstly, the bonds will be disproportionately and discriminatorily targeted against countries in south east Asia and Africa and secondly those targeted will find it very difficult indeed to find a £3,000 up front payment on top of their travel and other costs. It is another example of rights for the rich.
The measure was trailed in the media over the weekend and an official announcement was made yesterday on www.gov.uk. However, the announcement has mysteriously been removed, co-incidentally since the Lib Dems suddenly kicked up a fuss about the proposed level of the bonds, set at a whopping £3,000. You can still see the text of the official announcement on EIN if interested, as they wisely cut and pasted it before it vanished.
The announcement made clear that bonds for visitors was only the start:
The pilot will apply to visitor visas, but if the scheme is successful we’d like to be able to apply it on an intelligence-led basis on any visa route and any country.
The current Home Secretary seems hell bent on reducing immigration and being seen to reduce immigration. The measures used to achieve this political objective are not ‘intelligence-led’ at all, in fact, they are the dumbest of dumb blanket policies targeted against women, the poor and ethnic minorities.