Migrant Tales’ insight: The drama and pain continues in the United Kingdom after this unfair ruling…
The long-awaited judgment of the Court of Appeal in the case ‘MM’ on the matter of the lawfulness of the UK immigration rules setting income levels for the sponsorship of non-EEA family members was made public this morning.
The Court ruled that the Secretary of State’s rules, though discriminatory in their effect, had a legitimate objective and were for this reason not unlawful.
The immigration rule which was subject to the proceedings requires the British resident sponsor of a non-EEA spouse to demonstrate an income of at least £18,600 per annum in order that a visa be issued. In the event that a non-EEA national child is being sponsored a further £3,800 per annum income is required for the first child and £2,400 for each additional child after that. Provisions also exist for the sponsor to demonstrate a means to support through the savings of amounts indicated by the rules being available.
In a case in the High Court in which judgment was given 2013 Mr Justice Blake had ruled that the rules were a disproportionate interference with the UK resident’s right to family life under the terms of Article 8 of the European Convention of Human Rights. This was the issue being considered on an appeal by the Secretary of State.
In a long ruling on the matter the Court set out the view that, although the rule did discriminate against people with modest incomes they were not inherently irrational given the government’s legitimate aim in limiting the impact of immigration on public funds.
The Court held that the Secretary of State had demonstrated the rationality of the rules she had brought into effect by basing them on a report prepared by the Migration Advisory Committee and also the evidence of hard work done by her team of senior civil servants.
A low bar is set for the standard of the evidence which the Secretary of State is bound to consider to establish the rationality of her policy, with the judgment stating that it does not have to be based on “irrefutable empirical evidence” of the link between the policy and its social aim: it is “… enough that she should have a rational belief that the policy will, overall, achieve the identified aim.”
The ruling will disappoint the thousands of UK residents who have been denied the opportunity to establish a family life in this country with their dependents. However, whilst the Court ruling deals, for the time being, with the issue of the proportionality and lawfulness of the rules themselves, it still leaves the door open to challenges on the part of individuals that, in their specific case, a decision to refuse a family visa has no rational connection to the objective of protecting public funds.
There are believed to be around 4,000 applications for family visas with the border authorities which have been held up whilst awaiting the decision from the Court of Appeal. One of the positive features of today’s developments is that these will now proceed to a decision. Any that fail will now have the opportunity to appeal on the individual grounds of unfairness and disproportionality on the basis of their own facts.
The full Court decision is set out in the attached file.