BRITCITS OVERVIEW OF JUDGMENT – 22 FEBRUARY 2017

MM AND ORS vs SECRETARY OF STATE, SUPREME COURT

The Court of Appeal making families wait for four months felt tortuous. It seemed like a gift though
when the Supreme Court took a full year, handing down its judgment on the one year anniversary of
the hearing. There had been much hope pinned to this, that these judges would see what the ones in
the preceding court hadn’t, and would undo the injustice done to families by our paid representatives.
Perhaps because it is the last hope – unless this case goes to the ECHR, which given the case law
references may be unlikely.

The CoA had shocked us and Supreme Court wasn’t to be left behind. However, the judgment was
also not as bad as the headlines suggested, nor as even I initially though. It wasn’t as great as it
should have been, but there are some positives.

In summary, the minimum income requirement, at £18,600 is retained. But the Home Office has been
told to amend the rules and guidance to ensure best interest of children is the primary consideration
and to consider how alternative means of reliable funding can be taken into account.

The judgment

Looking through the judgment in some detail:

Introduction

In the same paragraph [2] the judges look at both, the median and mean earnings, which isn’t
consistent. The judges acknowledge there is a disparity in earnings between men and women, and
across the regions – yet seem to accept the inherent discrimination. They also reflect that 301 out of
422 listed occupations – ‘many providing essential public services’ – have average annual earnings
below £18,600, yet don’t take into account that these rules therefore do not serve public interest by
effectively forcing those providing these essential public services out of the UK, or at least, out of
their occupation. There is no acknowledgement that there may not be enough jobs paying the elusive
£18,600 outside London, and that being forced to move to a region where such salaries are the norm
actually leaves the family in a worse financial position.

The MIR and the background to its introduction

We are reminded that even pre July 2012, sponsors would need to show they were able to maintain
and accommodate themselves and any dependants ‘adequately in the UK without resource to public
funds’ such as social housing and welfare. NHS, education and social care are not classed as public
funds for this purpose. However, this was considered problematic because of inconsistencies in
allowing for current and prospective income of sponsor and applicant, third party support and housing
costs. Additionally it did not prevent a burden on the taxpayer once the applicant had indefinite leave
to remain, when they’d be eligible for full access to welfare benefits.

The above are given as the reasons for the MIR. I have so many issues with this.

1. The rules even now allow for current income of the sponsor; they also allow for prospective
income of sponsors who earn over £18,600 overseas and have a confirmed job offer in the UK
paying over that threshold.

2. The judgment deems HO does consider alternative means of funding – not clear what, but this may
mean third party support.

3. Even now, spouses can claim full benefits once they get ILR.

Judgment in MM and Ors vs Secretary of State, Supreme Court 1
So taking the combination of the July 2012 rules and the judgment, caseworkers should surely be
faced with the same problems the HO claim they did pre July 2012. What is the point then?

With regards to public funds – I cannot see in the judgment any mention of spouses paying an
Immigration Health Surcharge, or the taxes and National Insurance they pay from their earnings
which finds its way to the NHS.

There is much in the judgment about the Migration Advisory Report that came up with the £18,600,
including that this was the total household income that disqualified even the sponsor from becoming
‘a burden on the state’.

The aims of the MIR it is claimed by the HO are to

-Ensure “those who choose to establish their family life in the UK….should have the financial
wherewithal to be able to support themselves and their partner without being a burden on the
taxpayer. Moreover the sponsor should bear the financial responsibility of ensuring the migrant is
well enough supported to be able to integrate and play a full part in British society”.
-Reduce net migration
-Restore public confidence in the immigration system

The first point above makes it clear that the HO intends for British citizen to pay a penalty for falling
in love with a foreigner, whereby they must give up their own right to claim benefits, to have their
partner with them. The second point unfortunately works in the HO’s favour, as part of their strategy.
The third point – well, how can public confidence in the immigration system be restored when since
2010 the Home Office spend on immigration fees has seen a steep rise, coupled with a staggering
percentage of refusals being overturned on review or appeal.

HO anticipated these rules would reduce family visas by about 16,100 per year, and net migration by
9,000. This much havoc wreaked on families for this you ask. Indeed.

The new Rules and Guidance

It seems part of what has fed into the judgment is that the new rules were unanimously approved by a
positive resolution of the House of Commons, and the motion of regret in the House of Lords was
withdrawn.

Deep breath. First of all, when the new rules were approved, it had not been made clear what the
rules were – they had they had not been run through in detail in parliament, and they were rushed in,
with less than one month’s notice. The Joint Committee of Human Rights also said that the rules had
not been through the required level of parliamentary scrutiny. Once there was more clarity on what
the rules actually meant, both Houses of Parliament voiced dismay at what the rules were doing to
families. Evidence was submitted by the MM lawyers on these points. Additionally, withdrawal of
the motion of regret by peers is convention and very standard behaviour in the HoL. It is not a
condoning of the rules. Although I didn’t know this, I found out by speaking to the wonderful Lord
Avebury and Baroness Hamwee. I cannot imagine the judges are not however aware of this
convention.

The judgment then goes into the background of the actual cases brought before them. I am seriously
peeved by the repeated mention of the heritage of the British citizens who are looking to sponsor a
foreign partner. Why is it relevant when the judgment gives no weight to the disparity of average
earnings amongst different ethnic groups? It just serves to insinuate there is a two-tier nationality. I
also wish the cases had been of a sponsor who was a British citizen by birth, even going back several
generations and unable to sponsor their partner from America or Australia. It shouldn’t make a
difference, but I can’t help but wonder if it would have.

Judgment in MM and Ors vs Secretary of State, Supreme Court 2
The case law

There is case law indicating that there is ‘no general obligation to respect a married couple’s choice of
country to live in…’ and this is used by the judges to go further and say ‘no general obligation…to
authorise family reunification. It will depend upon the particular circumstances of the persons
concerned and the general interest. Factors to be taken into account are the extent to which family life
would effectively be ruptured; the extent of ties in the host country; whether there are
“insurmountable obstacles”’….and whether when family life was created it was known the
immigration status of the foreign partner would be precarious.

There are references to case law where the foreign spouse had committed an offence in the UK – not
relevant for the most part. Importantly though the judges reference case law that says best interest of
children must be taken into account (s55), even more so in the UK because we are a party to the UN
Convention on the Rights of the Child.

It seems the judges may have been placated by
-HO saying s55 would be adhered to not just for kids in the UK, but even for those outside the UK.
-Appendix FM purporting to reflect article 8 and s55
-Explanatory Memorandum stating the purpose of the new rules is to set requirements which correctly
balance right to private and family life with public interest in safeguarding the economic well-
being of the UK by controlling immigration, and that best interest of kids has been incorporated
into the rules.

But just because the label says something, it doesn’t mean that is what is in the tin…and to some
extent the judges do see that.

Challenging the rules under article 8

The Quila case is interesting – it restricted the admission of foreign spouses only where both parties
were over 21, in an attempt the HO said to deter forced marriages. Supreme Court in this case said
the number of unforced marries which such an age restriction obstructed vastly exceeds the number of
forced marriages it deters….a sledgehammer to crack a nut approach when the HO didn’t identify the
size of the nut i.e. the problem. And this case thus went against the government.

I cannot therefore understand why the same reasoning is not applied to this case – the rules cause
more damage to law-abiding families who are not a burden on the taxpayer than deter those who
potentially would be. Well, the HO certainly didn’t prove these rules help more than they hinder.

However, the court was not convinced that these rules are inherently unjustified in all or nearly all
cases and hence the MIR was not ruled unlawful on article 8 grounds. Furthermore, case law
indicates that the rules themselves do not have to be article 8 compliant –the refusal of a visa may
however breach article 8 in individual cases. Confused? Let me try and explain. The rules do not
have to allow for article 8 rights, but the decision to grant or refuse a visa in an individual case must
take into account article 8– which can be done through the combination of the rules, guidance, and
tribunals. Additionally, the Home Secretary / Minister for Immigration has discretion in granting
entry clearance outside of the rules (although there is no evidence to indicate this power is used).

So, it’s okay for the HO to refuse a visa on the basis of rules which do not take into account article 8
rights, because families will be able to go to tribunal to invoke article 8 rights.

“Thus whatever the defects there may be in the initial decision, it is the duty of the tribunal to
ensure that the ultimate disposal of the application is consistent with the Convention.” [59]

Judgment in MM and Ors vs Secretary of State, Supreme Court 3
That going to tribunal is not an option for all, because it costs a lot of money and means article 8
rights are not respected for even those who do go to tribunal for the years any legal proceedings take,
is not addressed.

Had the Home Office not changed their stance to accept that the rules are not all-encompassing when
it comes to article 8 rights, the judgment may have gone against them. Interestingly, the HO still aims
for the rules alone to lead to decisions which are compliant with article 8. The judges suggest this
may not be acceptable, but that is to do with the legality of the instructions, not the rules – and it is the
latter which they are being asked to make a judgment on, I guess they are implying.

Acceptability of the MIR

“MIR has caused, and will continue to cause, significant hardship to many thousands of couples,
who have good reasons for wanting to make their lives together in this country, and to their
children.” [80]

Here the judges acknowledge that the type of families who the MIR will have a harsh effect on also
includes Brits who formed relationships before the MIR was introduced, and now find themselves
unable to return home. However, they go on to say that just because a rule causes hardship to so
many [suggesting to me they are aware of the anguish caused by these rules], including those who are
in no way to blame for the situation which they now find themselves in, does not mean that it is
unlawful – despite also saying that while the MIR doesn’t prevent a couple marrying it does prevent
them from enjoying family life together.

Despite that ‘MIR may constitute a permanent impediment to many couples’, it is part of a strategy
to reduce net migration and ensure the couple do not have recourse to welfare benefits and can
integrate. And these aims are sufficient to justify the interference with, and the lack of respect for, the
right to a family life. Joy.

Worse, the MAC report is practically praised. And I don’t know if I am being dim here, but the MAC
report recommended an income threshold of £18,600 as the household income…a two person income.
Why then impose this requirement on one person alone?!

So the judges rule that the principle of the MIR is lawful. Which is fine - it’s the level which has been
an issue, so much higher than minimum wage. But I’m not sure that is covered by this judgment. Is
there anything to stop the HO from increasing the MIR?

Treatment of children

The judges find that best interest of children is not treated as a primary consideration. Instead, current
practice is that the foreign parent is only where there presence is the only means of alleviating the
hardship caused to the child e.g. for a major medical procedure or prevention of abandonment. The
judges state that they have no doubt this approach is defective, deeming both the rules and the
guidance as unlawful.

Treatment of alternative sources of funding

MAC report is once again cited, as it mentioned including third party support and the future income of
the spouse, given it is total household income which determines eligibility of even the British citizen
to welfare. That the Home Office did not take up MAC’s offer to consider how the £18,600 could be
adjusted is a huge boon for families, as there may be pressure on the government to now do so.

The court re-iterates what has been said in the House of Lords – that third party support may be more
dependable than employment.

Judgment in MM and Ors vs Secretary of State, Supreme Court 4
However, not allowing for alternative means of funding like third party support in the rules is
acceptable, as this makes for rules which are simpler and easier to apply. Outside of the rules though
is another matter as the Human Rights Act requires looking at the circumstances underlying each
application. But the Supreme Court deems that judges at tribunals can assess the reliability of
alternative sources of funding, even where caseworkers do not.

Supreme Court says the guidance should make clear that a broader approach may be required to
assess whether the government’s objectives of ensuring no burden on taxpayer and integration can be
met by other reliable sources of funds. Although, whatever the rules and guidance say on this,
nothing precludes the tribunal from allowing for them.

What constitutes reliable is a matter for the government to decide, and whether they do this through
the rules or guidance is up to the government.

What now?

The Home Office will make written submissions to the Supreme Court for the changes being
proposed as a result of this judgment, and the Court will then consider whether a further hearing is
necessary. I’m told by a member of the legal team that the Home Office has 56 days to action this.

We know the rules and guidance must be amended to take into account the best interest of children.

Amendments will need to be made to ensure alternative means of funding where the source is reliable
as deemed by the Home Office are taken into account, though how this is done, and what constitutes
reliable, is up to the government.

The MIR remains, and remains at £18,600+. Bummer. Can the government even increase this? If
they do so, I suspect it will not be part of their submissions! However, it may be tough for the to
increase the requirement to a threshold which is higher than that which would disqualify a British
citizen from claiming income-related benefits, given their rationale for the threshold.

I am concerned that whatever positive changes the Home Office make on the back of this judgment,
caseworkers will continue to apply them unlawfully. I have serious reservations about so many
families still being forced to rely on tribunals to right wrongs, when the tribunal path is neither quick
nor cheap. I am worried about the families who will still not be able to be together because of the
rules, couples who are prevented from having children because they are living in different countries,
and indeed, some who accelerate having kids just to be together in the same country.

It may be that significant change will now only come from parliament rather than courts, and thus I
urge all of you to make the most of media opportunities to voice how damaging these rules are, write
to your local newspapers, lobby your MP, name and shame them if they do not represent you. With
each day, the number of British citizens caught up in these rules will only increase as more and more
fall in love with someone without factoring in the colour of their passports.

Judgment in MM and Ors vs Secretary of State, Supreme Court 5
BRITCITS OVERVIEW OF HEARING – 22- 24 FEBRUARY 2016
MM AND ORS vs SECRETARY OF STATE, SUPREME COURT

For an event involving only about four hours a day of presenting arguments, the MM case was
unexpectedly exhausting.

Probably one of the most anticipated Supreme Court cases ever was heard over three days 22-24 th
February. A huge shout out to all our members who took the trouble to come to the hearing,
sometimes with kids in tow, and the many more who were following the arguments online, watching
on the SC website and twitter using the #MMcase. The legal team has also asked me to pass on their
gratitude for all the support from you guys – your speaking out has helped formulate key arguments
and evidence the actual impact these rules are having.

It is likely that we will soon see the full outcome of Bibi (the ELT case) which Lady Hale had said
was pending the #MMcase hearing, in order to avoid inconsistencies. The overlap with family issues
means the Bibi judgment may provide an insight into what we will see in the MM judgment.

My writings below are based on my notes and memories, and everyone’s tweets (if any of you come
across a job which pays to tweet, do let me know!), I definitely have not captured everything and do
not have the energy or will to watch the hearing all over (though I did watch Wednesday morning’s
webcast with some glee). I thus cannot urge you enough to watch the hearing yourself 1 to form your
own views rather than relying on my interpretation and listening and writing skills. You can also read
the overview from one of the lawyers on the case here2.

Overall seemed quite positive – though remember, I got it spectacularly wrong at the Court of Appeal
so my track record is as poor as it can be.

Many of you have asked, but without a crystal ball I do not know what is going to happen; I do not
know when the judgment will be handed down. But, with a lot of hope and anticipation, I think the
hearing should have made clear to the judges that the rules are not lawful; even if the minimum
income requirement is not scrapped altogether, I hope it will be reduced, third party support allowed
for, spouse’s potential income taken into account and best interest of children to be a primary
consideration, rather than only applied under exceptional circumstances such as natural disaster,
abandonment or for unforeseen medical procedures (!), as set out in current caseworker guidance.

The first day was a bit tough, but by the third day the hard graft put in by the MM legal team was
evident; the lawyer representing the Home Office was forced to face difficult questions posed by the
judges, often on the basis of submissions made by the family side earlier.

There was much talk about positive and negative obligations – over my head with oodles of
references to case law and submitted evidence which most of us will not understand the relevance of,
however for those who do want to look at them, the case law I could decipher included Jeunesse,
Quila, Bibi, Huang, Mirza, Alvi, Sen, Nagre, EB Kosovo, Izuazu and Abdulaziz

Manjit Gill QC, starting the proceedings on behalf of families, stating the key issue was immigration
rules requiring British citizens, settled persons and refugees to earn at least £18600 before being able
to sponsor a partner. He pointed out that the minimum income requirement (MIR) combined with the
1 https://www.supremecourt.uk/cases/uksc-2015-0011.html

2 http://www.43templerow.co.uk/43-temple-row-barristers-appear-in-the-supreme-court-
to-challenge-minimum-income-visa-rules/

Hearing in MM and Ors vs Secretary of State, Supreme Court 6
exorbitant application fees and Immigration Health Surcharge disentitles about half the working
population of any hope of ever being able to live in the UK with their non-EEA partner. In MG’s
view (and no doubt that of most people watching the proceedings), the gravity of interference is
particularly high – much higher than any other case that MG could think of – and the effects,
draconian.

Key submissions made by MG include:

 Section E-ECP (guidance on entry clearance of partners) unlawful because requirements for
exceptionality mean incompatible with Article 8
 Best interest of children is not dealt with as a primary consideration
 MIR unreasonably high (three times subsistence level) and based on irrational considerations.
But even if not irrational, only tenuous connection between MIR and aims being pursued:
reducing burden on taxpayers and promoting integration.
 Requirements of the rules and restriction on ways which MIR can be met, lack
proportionality; inherent lack of fair balance and discriminatory impact on certain group –
British citizens, refugees, women, low paid, children.
 Parliament can’t have meant to disentitle half the working population from marrying a foreign
spouse
 Navigating the guidance is torturous.
 Purported aim was to make things easier for caseworkers. However rules do anything but.
(Lord Hughes interrupted to say aim surely was to achieve/encourage self-sufficiency)
 Immigration Act 1971 says that there must be provision for dependants

He was followed by Richard Drabble QC, Ramby de Mello, and Karon Monaghan QC all submitting
arguments against the rules. Lisa Giovanetti QC represented the Home Office. As Lady Hale said,
though LG was outnumbered, this did not mean she was ‘outgunned’. LG’s response to this was
‘only time will tell’.

While families around the world were no doubt cheering at the barrage of questions LG could not
defend on behalf of her client – not because of her lawyering skills, but because the rules are just so
awful - there was some sympathy for her nevertheless, with Lady Hale asking ‘How are you doing
Miss Giovanetti?’ when LG had had an obviously tough time with in attempting to respond to the
judges. LG half-laughed and said ‘Doing as well as I can in the circumstances’. The professionalism
and lack of animosity between the lawyers on both sides was clear when LG sneezed and a member of
the opposing legal team whispered ‘bless you’. Awwww.

There were a few comedy gold moments, when Lord Wilson went to take another judge’s seat (Lady
Hale said he had ‘forgotten how senior he was’), Lady Hale joked about being insulted that her part of
a judgment in another case wasn’t referred to, RD unwittingly interrupted LG’s making of an
incorrect assertion, and indulgent reminders to MG that the clock was ticking. An interesting and
enjoyable experience in a glorious wood-panelled room.

Much appreciated was Lady Hale’s acknowledgement that it was clear everyone had worked very
hard, giving a special mention to the legal teams and researchers.

MIR

MG quoted High Court judge Justice Blake - whilst death and taxes are certain, for many people
earning £18600 p.a. is completely unachievable for a lifetime. In Quila, where the HO attempt to stop
British 18-21 year olds from sponsoring a foreign partner was found unlawful, the barrier was at most
three years. Unlike the English Language Test case, Bibi, after a few months and many hours of
learning, it was likely the required standard could be achieved. However with the MIR, the barrier
was in effect there for a lifetime.

Hearing in MM and Ors vs Secretary of State, Supreme Court 7
The court was referred to various documents including the BritCits witness statement3 (woohoo!) and
the MAC report4. I hope it gets through that the income recommendation by MAC is what they say a
two-person household needs to earn in order to not be entitled to any benefits, yet it’s a level that is
being imposed on a one-person household simply because a British citizen chose to marry a foreigner.
We heard again that at £18,600, UK has the highest income requirement in the world, save for
Norway which has a higher minimum wage as well.

MG gave examples of absurd situations like
 a foreign spouse earning £250,000 but being unable to move to the UK as the spouse and parent of
British citizens, because his wife, a full-time mum, did not earn £18,600.
 Someone being refused for being £0.69 below the MIR. Later, LG’s response to this ‘bright line’
argument was to say even if they accepted this person, what they for the applicant was who was a
further £0.69 below them. Where then should the line be drawn?

Lord Hodge and Lord Hughes were quite keen on exploring the relationship between MIR and tax
credits….and I just can’t even now fathom why.

LG’s main submission on behalf of the HO could be summed up as the state having the general right
to control immigration, with no obligation to respect a couple’s choice of country of residence. A
point that was repeated several times, but showed no respect for the right of a British child to have
access to both parents, or that a British citizen moving abroad would often mean elderly British
citizens left here on their own.

Best interest of children

MG made points about the best interest of children; while s55 was about best interest of children in
the UK, the statutory guidance requires the same spirit to be applied to kids outside the UK as well.
The significance of MG’s arguments were evident only on the third day, when Lady Hale raised this
point with LG, and all but bellowed that these were ‘British children who have a fundamental right to
be in the UK’ and the HO was not abiding by the ‘Every child matters’ guidance.

MG called the rules/guidance a ‘remarkable piece of work’ (not good remarkable) going on to make
points about best interest of children was a ‘million miles away’ from unjustifiably harsh
consequences which the HO policy required.

MG: “children are reduced to be dealt with only in context of exceptionality!”

RD also spoke of the best interest of children and Lord Hughes said he understood an issue was that
the caseworker was left to decide best interest, rather than it being part of legislation - “we will have
to think about it”.

RdM spoke about the nonsensical nature of the rules, suggesting I think that the rules encourage
parents to break up as the only way for a British child to have access to both parents, because of the
potentially different treatment of single parents.

3 http://www.scribd.com/doc/270279771/Witness-statement-for-MM-case

4 https://www.gov.uk/government/publications/migration-advisory-committee-
income-for-family-migration-route

Hearing in MM and Ors vs Secretary of State, Supreme Court 8
KM took on the baton for interveners Children’s Commissioner and JCWI. Her arguments were
easier to understand and likely led to many at home nodding along, covering:
 Single parents were more reliant on benefits, so any saving to taxpayer questionable
 Anticipated savings by the HO depend on children being separated from parents – policy not
intended to only incidentally or marginally impact on children
 Laughable to think £18600 needed to engage in community life – what about nurses earning less
and other occupations permanently excluded because they will not earn £18600
 55% of women unable to meet MIR, 27% of men, 41% of all UK’s working population
 CC’s research suggests over 15,000 children are affected; HO’s claim is that 6,000 is a more
accurate figure – whichever you believe it’s a growing and substantial number.
 In response to Lord Wilson asking what the issue was if the guidance ‘cures’ s55, said s55 is not
covered in the rules
 Best interest of child is truly exceptional, with only 44 referrals to RCU to access exceptionality on
MIR, and just 22 allowed for on s55 grounds, c.f. c39,000 refusals (for any reason) in the same
period – judges immediately pointed this was comparing apples and pears, but however KM said
you look at it, 22 is a tiny number of best interest grants

KM: Impact on families is devastating. It’s obvious if child is permanently excluded from living
with their parent, and spouses are apart, the impact is ‘colossal’….rules should be struck down as
unlawful. They fail on article 8, article 3 and exceptionality doesn’t save them.

When LG took the platform on behalf of the HO, unsurprisingly she rejected the Children’s
Commissioner analysis and numbers.

Lord Wilson in his exchange with LG commented on the way the guidance treats a child’s best
interest. The guidance mandated that a child’s best interest required consideration of whether any
factors involving child in the UK could only be alleviated by the presence of their non-EEA parent
here. He quoted from the guidance examples which the HO said cited as possible valid Art 8 claims
for foreign spouse/parent of a British child:

 To provide medical procedure support, especially where the procedure is unforeseen and likely to
lead to a permanent change in the child’s life
 To prevent the abandonment of the child in the UK
 Where the impact of a natural disaster on the foreign parents housing or employment makes it
impossible for the child in the UK to go abroad to live with them there.

These are ‘three very, very extreme examples’ he said, saying that the argument against the HO was
that the guidance was a parody of a balanced Art 8 inquiry.

LG said she would accept the parody allegation if this was a removal case of a settled migrant.
However, to grant entry clearance outside the rules would need something exceptional or compelling.
In the view of her client, where the parents chose to reside was a matter of personal choice.

During such discussions, a clearly fed up Lady Hale spoke up. She said that the best interest of a
child, as considered by the HO under s55 limited it to children in the UK. However, ‘Every child
matters’ says the same spirit should also be applied to children outside the UK. Did the HO accept
this?

LG completely agreed, saying Theresa May had made it clear to a tribunal that the spirit of s55 should
apply to kids outside UK - this was one of the points which future revised guidance would reflect.

That may have been the end of the matter, had Lady Hale not been keen to raise a point she found to
be of particular significance, which no HO policy to date had made reference to…the treatment of

Hearing in MM and Ors vs Secretary of State, Supreme Court 9
kids who are currently outside UK but as British citizens have the right to be here. What of their
ability to exercise that right, to join the parent here, and thus how did HO take into account a British
child’s best interest in remaining part of a united family rather than a separated one.

Weird laughter-like sounds from LG who was in a tough position. She conceded there was nothing in
the guidance to cover this situation; she wasn’t sure if this was anything to do with European law, but
that Theresa May had considered Zambrano, Direnchy (?) etc.

Before LG could go any further, Lady Hale interrupted to say her question was ‘nothing to do with
that’. It was to do with them being British citizens with a fundamental right to live here – this right
also, she said, derived from the Immigration Act. If the Children’s Commissioner’s claim was right,
then there were a lot of British children outside the UK because of these rules. What followed was a
shake of the head, and a look I am so familiar with when I have done something to displease my
grandma! 

After some very uncomfortable silence, LG agreed that this was right, however continued to argue as
far as Art 8 was concerned, this was not determinative.

One had to chuckle when in response to Lord Hughes asking ‘Article 8 of whom’, LG said the
‘Convention’ (as if a Supreme Court judge doesn’t know where Art 8 hails from!). Lord Hughes
rushed to say ‘oh I follow that, but whose Article 8 rights!’

I think Lord Hughes was saying that it was not so much about considering a British child’s entry into
UK, to which they have a clear right, but the question of admission or refusal of their parent who is
outside, if the children do come. What he asked, about the parent left behind?

According to LG, this would depend whether it was reasonable for the parent based in the UK to go
abroad [with the British child].

Lord Hughes persisted (and it was really hard not to take pleasure in this continuing torment….so
many families have been through so much pain). What about the British citizen who works abroad,
has kids abroad and now wants to come back home. Is that person faced with ‘I can’t come back
home without separating from my spouse’ asking whether that was even a real choice!

LG held onto her argument, saying that would depend on whether there was a reason the couple could
not live in their partner’s country. A citizen is not entitled to bring back with them a partner from
abroad, just as a citizen can’t just sponsor a partner abroad for entry clearance. To her it was the same
point. I’m really not sure whether LG was just not getting where the judges were coming from, or
deliberately choosing to evade the issue at hand.

Lady Hale looked like she already knew the answer when asking whether the guidance on family life
as a partner, in section 4, pertained to anything about the relevance of children. This is the section
that caseworkers would look at when considering granting entry clearance as a partner, so what is in
this chapter about children?

LG said that section 4 covered the cases where entry clearance could be granted under the rules, but
that caseworkers would need to look at section 14 to assess the application outside the rules for
exceptional circumstances to assess whether it would be unjustifiably harsh to refuse. She was clearly
clutching at straws when she said [surely, but surely!] caseworkers would not just stop at section 4.
Realising no one was believing what she was claiming – not even she herself - LG fumbled about,
conceding it may not be a bad idea to instruct caseworkers to move to section 14 if section 4 resulted
in a refusal.

The families side pointed out that the online application form does not specifically ask about children;
and the box where applicants are invited to provide any additional information has limited characters!

Hearing in MM and Ors vs Secretary of State, Supreme Court 10
An excellent point as how can HO consider the best interest of children if they make no effort to find
out whether there are any children involved?! On this LG’s response was that the online application
form landed on her desk only recently – the version she had was redacted and looked odd – she hadn’t
the time to look at it properly yet. Ho hum.

The third day especially was a particularly fascinating exchange and everyone should tune in to at
least Wednesday’s sessions.

Precariousness

MG said precariousness was when family life was created in a situation where you know one of the
parties is going to be deported; however the HO was trying to expand precariousness to for example a
British citizen who wants to lawfully sponsor his American wife! This extension he said was not in
line with Strasbourg. How can it be precarious if the applicant is already in the country, has a foot in
the door he asked?

RdM responded to Lord Hodge’s comment on precariousness, referring court to para 281 in the rules.

Lady Hale in interactions with RD, said that in relation to precariousness, cases she had in mind were
where people were in the UK without formal status, but then form a family life here – some may think
this was done deliberately, or in order to strengthen position to staying in the UK….this however is
not the situation in any of the MMcase families.

LG admitted the rules are complex, or Byzantine as called by the MM lawyers, because the
Immigration Directorate Instructions are now part of the rules. She also appreciated the rules were
not flexible, but said the intention was to make it predictable for couples who would know they
needed to save £X or earn £Y in overtime to meet the rules.

Lord Wilson mused how ‘precarious’ applied to marriages. The old test he said was not being
dependent on public funds. Now there is a much higher test – how predictable is that he asked
(presumably for couples who had established relationships pre rule change).

The HO response was particularly telling.

LG said this scenario had occurred to her, but she couldn’t recall what HO’s instructions were….what
if, she seemed to be thinking aloud, a couple had established family life under the old rules and
wanted to make an application under the new rules? According to her, the guidance should take
account of this (and this seemed like a huge concession to me), that they had been in a relationship
before the rules came into force should be a relevant factor, as this wasn’t a precarious situation at all;
the couple did not enter into the relationship in the knowledge that the rules were going to change.

However how much weight would be attached to this was a matter for the caseworker or tribunal.
Having made the concession, LG tried to recover lost ground by referring to Abdulaziz which I am
guessing has references to couples knowing they will need to meet whatever the rules are from time to
time.

Surinder Singh

MG referred to the complete absurdity within the rules that British citizens were being forced to use
the Surinder Singh route – using free movement to go to Europe, and then return to the UK as EU
citizens. This was forcing citizens into exile. BritCits evidence was once again referred to here.

When a judge asked how the Surinder Singh route worked, no doubt many of you were screaming at
the computer, able to recite in great detail how free movement works!
Article 8

Hearing in MM and Ors vs Secretary of State, Supreme Court 11
MG was super passionate in putting his case forward, saying in allowing for Article 8, the rules must
cater for an open-textured fact sensitive analysis, not prescriptive analysis.

Conceding that the guidance was not issued until about 8 months after the rules came into force, Lord
Wilson asked if the lack of the rules allowing for Article 8 was now remedied by the most recent
guidance. MG vehemently rejected that, saying the guidance didn’t actually take a different approach
to the rules on their own anyway.

RdM submitted if HO accept a marriage as genuine, then where MIR is not met, that’s Article 8
territory. With Immigration Health Surcharge, burden on NHS also not an issue.

On Article 8, Lord Wilson’s comments and questions to both sides, suggested to me that for him much
hinges on whether the guidance adequately allows for Article 8. A view the instructing solicitors
agreed with.

Lord Wilson to LG: “At first sight, everything seems high, tough and prescriptive.”

However, in Lord Wilson’s view, despite the requirements now being ‘high, tough and prescriptive’, if
there was enough leeway in the guidance to allow for Art 8, he thought the HO may just be okay.
Hence, the question really boiled down to whether the August 2015 guidance ‘is sufficiently
capacious to allow for most valid Article 8 claims to be upheld’. Something he said implied that if
ECOs came across a case which did not meet the rules, but Art 8 was deemed to apply, they’d be able
to grant entry clearance outside the rules.

When LG seemed to suggest agreement with this statement, RD wasn’t able to quite stop himself
from interrupting, mumbling something to point out that ECOs cannot grant visas outside the rules.
He did wince at this slip in the very proper way hearings in the UK are conducted, though LG took the
interruption in good stead and agreed that as RD had quite rightly pointed out, the ECO cannot grant a
visa under the guidance, because cases outside the rules have to be referred to the Referring Case Unit
in London for possible exercise of Theresa May’s discretion.

Hearing in MM and Ors vs Secretary of State, Supreme Court 12
Lord Wilson did not like this, saying LG had earlier submitted “the rules generally provide an Art 8
compliant outcome”. He repeated this several times and looked quite frustrated, saying surely ECO’s
were best placed to decide Art 8, given they interviewed applicants? LG pointed out that referring to
London was the case even pre 9 July 2012, but in terms of interviews, she personally was aware only
of one incident where the applicant had been interviewed, otherwise generally applications were made
online with supporting documentation sent in by post.

This was not a satisfactory response for Lord Wilson, for whom the issue of ECOs, guidance and Art
8 was significant. If an ECO can judge compliance within the rules he asked, why can’t the ECO also
judge article 8?

LG remained firm that it would be only in very strong cases described in the Grand Chamber
(European Court of Human Rights in Strasbourg – basically, the world’s court) as exceptional, there’s
a positive obligation to grant entry clearance. However the HO’s view (once again) was that Art 8
doesn’t impose an obligation to respect the choice of matrimonial/partner residence.

Lady Hale: “I understood this point very clearly in your submissions yesterday, and we’ll have to
make of it what we can…” exchanging a knowing look with the other judges.

LG soldiered on, repeatedly saying that the rules strike a fair balance. (Almost as if saying it enough
times would convince everyone it was true!) She did however make a potentially dangerous point
that even if there was a flaw, it was in the guidance and not the overall scheme.

Lord Reed took issue with unjustifiably harsh circumstances being used to determine Art 8 rights,
saying it should be whether the rules strike a fair balance between public interest and family life. LG
said HO takes these as the same, but Theresa May will take on board the court’s views.

Third party support and foreign spouse’s income

There was much talk about the decision to exclude the applicant’s potential income and third party
support.

RdM said that the guidance excludes allowance for third-party support, even though there is scope for
an undertaking; the guidance makes no allowance for the applicant’s prospective income. He was
quite insistent that third party support combined with an undertaking would better allow for
integration and reduce the burden on taxpayers, and also form a less intrusive measure and the
argument proposed by the HO against this, was purely on grounds of sustainability. However, while a
family could turn on the sponsor and applicant, an £18600 job could also be lost. No good reason for
excluding third party support.

LG’s justification for excluding spouse’s income was the MAC report she called a ‘detailed and
thoughtful piece of work’; the £18600 was set so as to exclude spouse’s income. Lady Hale however
was particularly interested in para 5.8 of the report, where MAC had offered to explore what the
income threshold would be if the spouse’s income was taken into account. She asked whether the
HO had in fact engaged in any further discussions/explorations as to how matters would be altered if
spouses income taken into account, as was offered by MAC?

LG said something not particularly relevant, likely hoping she could get back to her own submissions
rather than answering such questions.
However, Lady Hale was persistent. She said she understood the convenience of a fixed scheme
dictating what eventually happened, but still wanted to know whether HO had engaged in any further
discussions with the MAC over this point?

Hearing in MM and Ors vs Secretary of State, Supreme Court 13
LG was forced to concede this was likely a no, attempting to justify this lack of action by saying
disregarding prospective income of spouse was not only about administrative ease (as was asserted by
the judge in the High Court) but that it wasn’t sufficiently certain or reliable.

Lord Reed interrupted to say surely that would depend on the circumstances, citing an example of a
foreign spouse who was working as an academic at a university in Canada. If this spouse got a job
offer from a university in the UK, then their salary would be a known amount.

LG said her client’s position on this was that this spouse could then come in on an employment visa!
The judges did not look impressed, saying this was HO just turning one sort of immigration into
another!

Lord Reed persevered with his example, asking if the HO’s position then was that the Canadian
spouse in his example would be assessed on the standard employment visa requirement i.e. where
they would need to be on the skills shortage list etc. LG said ‘yes’.

Lord Reed summarised the HO response as even if the foreign spouse has a clear offer of well-paid
employment, this is not taken into account by the rules, to which HO countered that it could be
considered under the guidance (which of course we all know doesn’t actually allow for spouse’s
income).

And here the point that MG made on the first day hit home. He had said Theresa May was turning
family migration into migration of economic workers only! If sponsor was rich, or applicant
themselves able to show they’re on the skills shortage list then okay, but that was not what parliament
intended with the Immigration Act 1971, requiring the Secretary of State to make provision for
dependants of British citizens.

No doubt LG was cursing her client, as even this wasn’t the end of the questions on exclusion of
spouse’s income from the judges. Lord Hughes asked whether LG was able to evidence the HO’s
decision to exclude spouse’s income and third party support. He said he understood there were issues
around the difficulty regarding the verification and enforcement of spouse’s income, but did the HO’s
justifications go any further than that?

LG with the aid of her assistant, Neil Sheldon, found a reference to something which suggested HO
had engaged in discussions with the MAC about some elements of the report and that the argument
had developed over time hence the five witness statements from Clive Peckover. However the judges
cottoned onto this together saying this reference did not mean HO had undertaken a further
investigation to explore MACs offer to allow for the spouses income!

Lord Wilson again instructed LG that if there was any evidence to show the spouse’s income had been
excluded for reasons other than verification and enforcement, ‘take us to it’, almost imploring her to
do so.

LG’s only real comeback was that the coming up with the rules was a 17 month complex process, that
the rules had gone through a lengthy and careful analytical consultation process, with Theresa May
personally involved throughout the formation of the policy. Were the HO give the court a fuller
picture of the analyses of the rules, they’d have to bring ‘boxes and boxes’ into the court. (I really
don’t think telling the judges we didn’t want to carry all our evidence hence unable to answer your
questions, did her any favours.)

The MAC report she said indicated there was a problem with prospective earnings, leading to Lord
Kerr intervening that this does not preclude the HO from taking into account a firm offer of
employment as per Lord Reed’s example!

Hearing in MM and Ors vs Secretary of State, Supreme Court 14
LG kept reiterating that in practice, outside the rules, in exercise of discretion ‘everything’ is taken
into account. She had to double check whether it was okay for her to say that the guidance allowed
‘for everything to be taken into account’ and that even she, a QC who has been working on this case
for three plus years wasn’t sure, speaks volumes about how complex the family immigration rules
really are!

It was clearly difficult for LG and I found it hard not to feel a tad sorry for her….I know, I know!

Promoting integration

On integration MG said those with less money have even more incentive to integrate, reminding the
court that at the Court of Appeal hearing, LG had said that more affluent people integrate better – a
claim that led to shocked laughter from the public gallery.

However, MG said that LG was now claiming that such an assertion was never made. Looking up my
CoA write-up, I see it was in fact one of the judges who asked whether the HO submission was that
affluent people integrate better. I am absolutely certain that in response to this question from the
judge LG said yes.

Quite disappointing that she has now backtracked, but given the references to money aiding
integration in the CoA judgment, hopefully not important. And surely if she’s now saying more
affluent people don’t integrate better, there goes another HO justification for the MIR?

Discrimination

RdM concentrated on discrimination as a result of the rules and that the measures adopted by the HO
were not the least intrusive to achieve their stated aims. He also brought up the issue of no recourse
to public funds. The rules he said discriminate against women, refugees and those of an ethnic
background – who on average earn lower salaries.

Period to ILR

Lord Wilson asked for the rationale behind a 10 year period to ILR where the grant of a visa is outside
the rules. LG said something along the lines of her not quite understanding the rationale for the
longer period to ILR herself, but said that the HO was reviewing two matters for the new guidance to
come:
 Best interest of children outside the UK
 The 10 year route rather than 5 years for entry clearance application outside the rules.

Refugees

Also a very important part of the case, but given the nature of our membership and my own very
limited knowledge in this area, not something I took extensive notes on.

RD spoke about refugees and their post-flight relationships, referring to an Upper Tribunal case, FH.

Lord Hughes and Hodge were concerned about a change in circumstances in the refugee’s country of
origin, meaning they were no longer at risk of persecution i.e. that in such a situation, refugee status
was not a trump card. I couldn’t help but think, surely being a British citizen should be a trump card
to having your spouse, child or parent here, especially with no recourse to public funds!

Parliament reigns supreme

RD reminded the courts the rules are not legislation – primary or secondary.

Hearing in MM and Ors vs Secretary of State, Supreme Court 15
Much was made by LG about the rules having gone through a ‘proper parliamentary process’.
Remember, when the rules were laid before parliament there was no guidance, JCHR wrote to the HO
about how they were not happy with how matters had evolved and the Hansard records show no clear
explanation of what the rules would actually mean for families. If only the rules included a discussion
of MP salary, we’d have seen more scrutiny! Cynical maybe, or just a realist given the eye opener the
last four years have been!

Lord Reed explained SC wasn’t carrying out a reviewing function; in assessing weight of public
interest in interest of fair balance, HO in position to judge what is required which court isn’t so weight
is attached to Theresa May’s assessment of such matters. However in balancing those considerations
against an individual interest protected by Art 8, SC has constitutional responsibility to make that
assessment for itself, as a decision maker not administrative court carrying out reviewing function.

LG accepted that entirely in the case of immigration appeals on an individual case but in MM she said
court is not weighing an individual interest, it is looking at whether scheme devised is capable of
accommodating that assessment.

Lady Hale was not having any of it, interrupting to say that actually in the MM case, we have ‘one of
each’ - a judicial review of the scheme and individual Huang type appeal in SS Congo [one of the
other claimants].

Lord Reed pointed out the scheme must apply to individual cases, it can’t pre-empt what outcome will
be in individual cases. LG agreed but said there was clear distinction between an approach to the
scheme and individual case.

Other

When LG referred the court to comments made by three of the Supreme Court judges in paragraphs
63 and 96 of Bibi, but excluded Lady Hale, there was much laughter when Lady Hale joked she felt
'deeply insulted', to which the HO replied with 'you didn't say anything enormously helpful....to us'.

Lord Hodge, whose comments in Bibi the HO appeared to be relying on was keen to clarify his
comment in para 63. While he had said there was a wide margin of appreciation in assessment of the
consequences of its social policy, this was not to be interpreted as his saying there was a wide margin
of appreciation in relation to the question of fair values!

LG said she needed to think about the distinction to which Lord Hodge said the distinction is ‘quite
clear’, explaining that in the quoted text he was assessing whether there was a rational connection
between the limitation put on immigration [by having pre-entry ELT] and legitimate aim being
pursued [integration?]. LG admitted she would need to reflect on this to assess whether the HO
analysis was flawed, or its communication.

For comical value, my favourite was probably Lord Kerr, who said LG had been responding to a lot of
questions that morning (rather than being able to make her planned submissions) and he didn’t want
to add to the burden….subsequently going on to add to the burden by asking a question 

Perhaps I am reading too much into LG’s comments as this is likely the case for all relationships
between lawyers and their clients, but after a very difficult few years, it was good to hear even the
Home Office lawyer distancing herself from the Home Office :“when I say ‘we’ I mean my client
obviously”.

Hearing in MM and Ors vs Secretary of State, Supreme Court 16
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 later in 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

Judgment in MM and Ors vs Secretary of State, Court of Appeal 17
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.

Judgment in MM and Ors vs Secretary of State, Court of Appeal 18
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.

Judgment in MM and Ors vs Secretary of State, Court of Appeal 19
 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!

Judgment in MM and Ors vs Secretary of State, Court of Appeal 20
View on judgment from MM lawyers:
http://43templerow.co.uk/court-appeal-rules-family-migration-minimum-income-threshold/

Judgment in MM and Ors vs Secretary of State, Court of Appeal 21
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.

Hearing in MM and Ors vs Secretary of State, Court of Appeal 22
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.

Hearing in MM and Ors vs Secretary of State, Court of Appeal 23
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

Hearing in MM and Ors vs Secretary of State, Court of Appeal 24
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/

Hearing in MM and Ors vs Secretary of State, Court of Appeal 25