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The appellants status is one which she chose and not one with which she was born or which she could not avoid. Ratio |
Unquestionably, that circumstance alters the approach that one takes to the difference in treatment to which she was subject vis--vis a married or civil partner. Ratio |
But should that bring about a markedly more benevolent review of the imposition of the nomination requirement? After all, the essential purpose of the change in the scheme brought about by the 2009 Regulations was to include persons such as the appellant. Ratio |
Moreover, it was necessary for the authorities to bring about that change in order to secure her entitlement to equal treatment and, incidentally, to comply with their obligations under ECHR and the Human Rights Act 1998. Ratio |
The reason that it was decided to include the nomination requirement was to make the scheme congruent with that in England and Wales. Ratio |
No independent evaluation of the need for this particular procedure was undertaken. Ratio |
It was not present to the mind of the decision-maker that a wider discretion was available because the status of those affected was not an inherent or immutable personal characteristic. Ratio |
For all these reasons, while this is a factor that should not be left out of account, it does not weigh heavily in the assessment as to whether the discrimination is justifiable and proportionate to its objective. Ratio |
On the bright-line rule argument, the respondents relied on para 91 of Lord Sumption and Lord Reeds judgment: The advantages of a clear rule in a case like this are significant. ARG |
It can be applied accurately and consistently, and without the element of arbitrariness inherent in the discretionary decision of individual cases. ARG |
By simplifying administration it enables speedy decisions to be made and a larger proportion of the available resources to be applied to supporting students. ARG |
Young people considering applying to universities need to know whether they will get a student loan or not. ARG |
The Student Loan Company, which administers the scheme, needs to process a very large number of applications for loans in the relatively short interval between the acceptance of a student by a university and the start of the academic year. ARG |
The contrast between the situation in Tigere and the present case is immediately obvious. Ratio |
The authorities in Tigere had identified the difficulties in administration which they claimed would beset the student loan scheme if those whose immigration status was uncertain were included in it. Ratio |
That was central to the policy decision. Ratio |
The volume of applications for loans called for a clear rule, it was claimed, even though this might cause hardship in individual cases. Ratio |
This was a thought-through approach to what the authorities apprehended would be a considerable logistical problem. Ratio |
In the present case, no thought was given to possible difficulties with administration that might arise if the nomination procedure was not included in the new scheme which the 2009 Regulations introduced. Ratio |
Indeed, even after the appellants challenge was made, DENI has not been able to produce tangible evidence that there would be significant problems in administering the scheme if the nomination requirement was abandoned. Ratio |
Vague suggestions as to the workability of the scheme and the advantages of actuarial predictions were made but these were not supported by evidence. Ratio |
It is also significant that in England and Wales, where a significantly greater number of applications require to be transacted, it is considered that the nomination procedure is not necessary. Ratio |
I consider, therefore, that the desirability of a bright-line rule is, at most, of marginal significance in this case. Ratio |
On the argument that a broad margin of appreciation should be afforded to the decision to include the nomination procedure because it fell within the socio- economic sphere, the respondents relied on paras 75 and 76 of Lord Sumption and Lord Reeds judgment in Tigere, which quoted from a passage in Stec already referred... |
Student loans are provided out of public funds on terms which are much more advantageous to students than any commercial alternative. ARG |
They are a form of state benefit. ARG |
Such benefits are almost invariably selective and the criteria for selection necessarily involve decisions about social and economic policy and the allocation of resources. ARG |
For this reason, discrimination in their distribution gives rise to special considerations in the case law of the Strasbourg court. ARG |
The test is to be found in the decision of the Grand Chamber of the European Court of Human Rights in Stec v United Kingdom, 43 EHRR 1017, para 52: 76. ARG |
Commenting on this test in R (RJM) v Secretary of State for Work and Pensions [2009] AC 311, Lord Neuberger (with whom Lord Hope, Lord Walker and Lord Rodger agreed) remarked on its practical implications, observing that the fact that there are grounds for criticising, or disagreeing with, these views does not mean tha... |
Equally, the fact that the line may have been drawn imperfectly does not mean that the policy cannot be justified. ARG |
Of course, there will come a point where the justification for a policy is so weak, or the line has been drawn in such an arbitrary position, that, even with the broad margin of appreciation accorded to the state, the court will conclude that the policy is unjustifiable. ARG |
The test was reviewed and reaffirmed by this court in Humphreys v Revenue and Customs Comrs [2012] 1 WLR 1545, paras 15-21 (Baroness Hale of Richmond JSC). ARG |
It has recently been applied by this court in R (SG) v Secretary of State for Work and Pensions (Child Poverty Action Group intervening) [2015] 1 WLR 1449, paras 11, 69 (Lord Reed JSC). ARG |
Where a conscious, deliberate decision by a government department is taken on the distribution of finite resources, the need for restraint on the part of a reviewing court is both obvious and principled. Ratio |
Decisions on social and economic policy are par excellence the stuff of government. Ratio |
But where the question of the impact of a particular measure on social and economic matters has not been addressed by the government department responsible for a particular policy choice, the imperative for reticence on the part of a court tasked with the duty of reviewing the decision is diminished. Ratio |
In this case, DENI was not concerned about socio-economic choices when it decided to mimic the nomination requirement that was in place in England and Wales. Ratio |
It was motivated solely by the desire to maintain consistency between the two schemes. Ratio |
Of course, after the appellants challenge materialised, the department addressed possible advantages that might accrue if the nomination requirement was maintained and, as I have said, these are not to be dismissed solely because they are the product of hindsight - nor even because they have been put forward post hoc a... |
But the level of scrutiny of the validity of the claims must intensify to take account of the fact that the claims are made ex post facto and the claimed immunity from review on account of the decision falling within the socio- economic sphere must be more critically examined. Ratio |
A suggestion that any matter which comes within the realm of social or economic policy should on that account alone be immune from review by the courts cannot be accepted. Ratio |
It must be shown that a real policy choice was at stake. Ratio |
While it is not essential that the policy options were clearly in play at the time the choice was made, obviously, when they were, the cause for reluctance by courts to intervene is enhanced. Ratio |
In the present case, however, for the reasons earlier given, not only were socio-economic factors not at the forefront of the decision-making process at the time that the decision to include the nomination procedure was made, but the attempt to justify retention of the procedure on those grounds was characterised by ge... |
I do not consider, therefore, that this is a factor of any significance in this instance. Ratio |
The test for proportionality Ratio |
The test for the proportionality of interference with a Convention right or, as in this case, the claimed justification for a difference in treatment, is now well settled - see the judgments of Lord Wilson in R (Aguilar Quila) v Secretary of State for the Home Department [2011] UKSC 45; [2012] 1 AC 621 at para 45, Lord... |
As Lord Reed said, it is necessary to determine (1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right, (2) whether the measure is rationally connected to the objective, (3) whether a less intrusive measure could have been used without unacceptably compromising... |
For the reasons earlier given, I consider that the objective of the particular provisions in the 2009 Regulations which are involved here must have been to remove the difference in treatment between a longstanding cohabitant and a married or civil partner of a scheme member. Ratio |
To suggest that, in furtherance of that objective, a requirement that the surviving cohabitant must be nominated by the scheme member justified the limitation of the appellants article 14 right is, at least, highly questionable. Ratio |
Be that as it may, I consider that there is no rational connection between the objective and the imposition of the nomination requirement and that this also fails to meet the third and fourth standards in Lord Reeds formulation. Ratio |
Conclusion RPC |
I would allow the appeal; make a declaration that the requirement in the 2009 Regulations that the appellant and Mr McMullan should have made a nomination be disapplied; and that the appellant is entitled to receive a survivors pension under the scheme. RPC |
I would allow the appeal; make a declaration that the requirement in the 2009 Regulations that the appellant and Mr McMullan should have made a nomination be disapplied; and that the appellant is entitled to receive a survivors pension under the scheme. RPC |
In July 2012, a new Appendix FM was inserted into the Immigration Rules, dealing with the entry requirements for non-EEA family members to join their relatives here. Ratio |
Section EC-P dealt with entry clearance and leave to remain as the partner of a British citizen in the United Kingdom, or a person settled in the United Kingdom, or a refugee or person with humanitarian protection in the United Kingdom. Ratio |
By partner is meant a spouse or fianc(e), a civil partner or proposed civil partner or a person living in a relationship akin to marriage or civil partnership for at least two years. Ratio |
Section E-ECP dealt with the financial requirements. Ratio |
These were more precise and stringent than anything which had gone before (and are here referred to as the Minimum Income Requirement or MIR). Ratio |
Put shortly, they required that the sponsoring partner have a gross annual income of at least 18,600, with an additional 3,800 for the first dependent non-EEA national child and 2,400 for each additional such child. Ratio |
Only the sponsors earnings are to be taken into account: the prospective earnings of an entering partner, and any support from third parties, are ignored. Ratio |
Alternatively, the couple are required to have substantial savings, 16,000 plus two and a half times the shortfall in the sponsors earnings. Ratio |
Estimates differ as to the proportion of the adult population who can meet these requirements but it is clear that a substantial number cannot do so, especially if they have children. Ratio |
Median full-time gross earnings in the UK in 2012 were 26,500 but for men they were 28,700 and for women 23,100. Ratio |
There were also substantial regional differences, with people in London and the south-east earning above the national median and people in Northern Ireland, Wales, and the north east earning considerably below (Office for National Statistics, Statistical Bulletin: Annual Survey of Hours and Earnings: 2012 Provisional R... |
301 out of the 422 occupations listed had average annual earnings below 18,600. Ratio |
Among those earning below that figure were many providing essential public services. Ratio |
Four of the cases before us, MM, AF, AM and SJ (for convenience we shall refer to all the parties by initials), are claims for judicial review of the MIR launched around the time that Appendix FM was first introduced. FAC |
The MIR is challenged on the ground that it is incompatible with the rights of the claimants and their partners (and a child living with one of them) under articles 8, 12 and/or 14 of the European Convention on Human Rights and also that it is unreasonable and ultra vires on common law principles. FAC |
The claimants enjoyed a measure of success before Blake J in the Administrative Court: [2013] EWHC 1900 (Admin); [2014] 1 WLR 2306. FAC |
The Court of Appeal allowed the Home Secretarys appeal: [2014] EWCA Civ 985; [2015] 1 WLR 1073. FAC |
The fifth case, SS, is an appeal against the refusal of entry clearance because of failure to meet the MIR. FAC |
The appeal succeeded on article 8 grounds in both the First-tier Tribunal and the Upper Tribunal. FAC |
The Court of Appeal heard the Entry Clearance Officers appeal, along with five other selected test cases, and the appeal was allowed: [2015] EWCA Civ 387; [2016] 1 All ER 706. FAC |
The Supreme Court directed that all five appeals be heard together. FAC |
The MIR and the background to its introduction FAC |
Before the introduction of the MIR, the Immigration Rules required broadly that the parties would be able to maintain and accommodate themselves and any dependants adequately in the UK without recourse to public funds, which included social housing and most welfare benefits but not the NHS, education and social care. F... |
This is still the criterion which applies if the applicants partner is in receipt of disability living allowance or similar disability-related benefits (see Appendix FM, para E-LTRP 3.3). FAC |
In KA and others (Pakistan) [2006] UKAIT 00065; [2007] AR 155, the Upper Tribunal adopted income support as the test of adequate maintenance - at that level it could not be said that the family were not properly maintained but neither should it be contemplated that immigrants would live below that level. FAC |
This reasoning was approved by the Court of Appeal in AM (Ethiopia) v Entry Clearance Officer [2008] EWCA Civ 1082, [2009] Imm AR 254, para 78. FAC |
This amounted to around 5,500 a year after deduction of tax and housing costs. FAC |
Problems were encountered with that approach. FAC |
The assessment did not depend upon a set income threshold but on a consideration of current and prospective employment income of both parties, the extent of any other financial means, including the support of third parties, and their housing costs. FAC |
Entry clearance officers and case workers found that it was difficult to apply the test consistently and for applicants and sponsors to assess whether they would meet it. FAC |
It was complex to administer, particularly in respect of any benefits which the sponsor might claim, as it was difficult to know whether these were the result of admitting the partner. FAC |
It did not prevent burdens on the system arising over the longer term once the partner had qualified for settlement and thus for full access to welfare benefits. FAC |
Hence the Home Office set about devising an alternative policy. FAC |
A consultation paper proposing a new minimum income threshold for sponsors wishing to bring a non-EEA national spouse or partner or dependants into the UK, set at a higher level than the safety net of income support, was published in July 2011. FAC |
At the same time the Government asked the Migration Advisory Committee to consider what the minimum threshold should be in order to ensure that the sponsor could support a partner and any dependants independently without their becoming a burden on the state. FAC |
The Committees Report, Review of the minimum income requirement for sponsorship under the family migration route, was published in November 2011. FAC |
The Committee based its calculations on the gross income received by the sponsor in the United Kingdom, without deducting housing costs, which it believed were open to manipulation and difficult to verify (paras 4.24-4.26). FAC |
It acknowledged, however, that there was a strong case in principle for including the future earnings of the sponsored migrant as it is the total household income which determines whether they will be a burden on the state (para 4.20). FAC |
It then developed three options: benchmarking to levels of pay, such as the national minimum wage, the living wage, the 25th percentile of UK wage distribution and so on; or benchmarking to the benefits system, that is to the level of income beyond which the family would not be entitled to income-related benefits, incl... |
The pay approach was rejected because, although simple to calculate and understand, it did not relate directly to the question asked, nor was there any clear economic basis for selecting one threshold over another (para 5.2, 5.3). FAC |
Under both the benefits and the net fiscal approaches, the lowest possible threshold was 13,400 a year and the highest was 40,000. FAC |
Under the benefits approach, the committees preferred threshold was 18,600 a year, the point at which the family would not be entitled to any income-related benefits, including tax credits and housing benefit, assuming a two adult household (because the additional adult increases benefit entitlement) and housing costs ... |
Under the net fiscal approach, the preferred threshold was 25,700 a year, assuming a one adult household (because only one adults income is taken into account) (para 5.6). FAC |
The Committee therefore recommended that the income threshold be set between 18,600 and 25,700 gross annual income (para 5.7). FAC |
The Committee also considered two methods of adjusting the income threshold to account for dependent children, the first of which reflected income-related benefits that the family would derive from their dependent children. FAC |
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