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Based on what was known about recent sponsors of spouse or partner applicants, it was estimated that 45% of them would not be able to meet the 18,600 threshold and 64% would not be able to meet the 25,700 threshold (para 5.18). FAC |
The Committee emphasised that its recommendation was based solely on economic considerations and not on the wider legal, social or moral issues (para 5.7). FAC |
The Governments conclusions were announced in the Home Offices Statement of Intent: Family Migration (June, 2012). FAC |
The Government had decided to adopt the gross annual income threshold of 18,600 for a British citizen or settled person to sponsor a non-EEA fianc(e), proposed civil partner, spouse, civil partner, or unmarried partner, with an additional 3,800 for the first dependent child and 2,400 for each further child. FAC |
These would apply at every application stage - for entry clearance or leave to remain, for further leave to remain (after 30 months) and for indefinite leave to remain (after five years) (para 74). FAC |
The same rules would apply to refugees and people granted humanitarian protection who wished to sponsor a post-flight partner and dependent child or children, because they should not be in a better position than people settled here (para 131). FAC |
But sponsors in receipt of specified disability-related benefits or carers allowance would continue to be covered by the old rules (para 75). FAC |
Caseworkers were to have no discretion or flexibility in respect of the threshold (para 83c). FAC |
Specified non-employment income, pensions and savings of both parties would be taken into account (para 82), but the previous, current or prospective employment and earnings of migrant partners would not be taken into account at the entry clearance stage (para 83e), although their earnings would be taken into account w... |
Sponsors or partners must have been earning at the required level for six months in the same employment or for 12 months if they had changed employment (para 83h). FAC |
Sponsors returning from abroad would have to show that they had earned at the required level while abroad and had a firm, verifiable job offer or signed contract of employment to start work here within three months of their return at the required level (para 83j). FAC |
Cash savings of both partners of more than 16,000 could be taken into account to make up the shortfall in income multiplied by 2.5 for the probationary period and simply to make up the shortfall at the indefinite leave to remain stage; thus if there was no income, they would need savings of 62,000 in cash at the entry ... |
These savings might have come as a gift from a third party but they must be real resources for the couple to use as they see fit, not a loan or an undertaking to subsidise or support if needed. FAC |
Promises of support from third parties would not be accepted (para 83m). FAC |
The detailed requirements and the evidence which would be required were set out in Appendix B. FAC |
The Statement of Intent also announced that the new rules on family migration would reflect fully the factors which can weigh for and against an article 8 claim. FAC |
They will set proportionate requirements that reflect, as a matter of public policy, the Governments and Parliaments view of how individual rights to respect for private or family life should be qualified in the public interest to safeguard the economic well-being of the UK (para 7) FAC |
This was fleshed out by a Home Office statement which accompanied the new Immigration Rules on Family and Private Life (HC 194), Grounds of Compatibility with article 8 of the European Convention on Human Rights. FAC |
This explained that, while the Rules were amended in 2000 to require all Home Office staff to carry out their duties in compliance with the provisions of the Human Rights Act, there had been no substantive change to the family life part of the Rules to reflect any consideration of proportionality under article 8 or to ... |
Staff and courts had had to make their own decisions on an individual basis, which had led to unpredictability and inconsistency which are anathema to good administration (para 11). FAC |
Hence the purpose of the new rules was said to be - to fill the policy vacuum by setting out the Secretary of States position on proportionality and to meet the democratic deficit by seeking Parliaments agreement to her policy. FAC |
(para 19) Ratio |
The Rules themselves would state how the balance should be struck between the public interest and individual rights, taking into account the relevant case law. FAC |
If the Rules were proportionate, decisions taken in accordance with them, would, other than in exceptional cases, be compatible with article 8 (para 20). FAC |
The role of the courts should shift from reviewing the proportionality of individual administrative decisions to reviewing the proportionality of the Rules themselves: The starting-point of such a review will be that Parliament has decided how the balance should be struck. FAC |
Although Parliaments view is subject to review, it should be accorded the deference due to a democratic legislature. FAC |
If proportionality has already been demonstrated at a general level, it need not, and should not, be re-determined in every individual case. FAC |
(para 22) FAC |
impact assessment and an equality impact assessment. FAC |
In addition to these documents, the Government also published a general FAC |
The aims of the MIR, as consistently stated both in the Statement of Intent and in the Grounds of Compatibility were that 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. FAC |
Moreover, the sponsor should bear the financial responsibility of ensuring that the migrant is well enough supported to be able to integrate and play a full part in British society (Grounds of Compatibility, para 52). FAC |
This policy has a legitimate aim of safeguarding the economic well-being of the UK and it is considered that there is enough flexibility in the policy to prevent the policy from being a disproportionate interference with article 8 rights (para 55). FAC |
The evidence of Mr Clive Peckover, for the Secretary of State, is that the MIR forms part of an overall programme of reform intended to reduce net migration and restore public confidence in the immigration system (Witness Statement 2, para 8). ARG |
But this was not its primary objective: there is no cap on the number of spouses, partners and would-be partners who can be admitted, provided that the couple can meet the MIR. ARG |
Nevertheless, it was anticipated that it would lead to a fall in the numbers admitted by this route, which would bring substantial savings in welfare benefits, and to the NHS, education and other public services. ARG |
40,500 spouse or partner visas were issued in 2010 and it was estimated that a MIR of 18,600 would, taken with the other proposed reforms, reduce family route visas by approximately 16,100 per year and net migration by 9,000. ARG |
The new Rules and Guidance STA |
The MIR in the new Rules laid before Parliament reflected those policy choices. STA |
In June 2012, the Home Secretary laid before Parliament HC 194, which introduced a new Appendix FM to the Immigration Rules dealing with applications from family members. STA |
Unusually, the new Rules were unanimously approved by a positive resolution of the House of Commons. STA |
When the Rules were tabled in the House of Lords, a motion of regret was withdrawn and there was no negative resolution. STA |
The new Rules came into force on 9 July 2012. STA |
They were further amended by CM 8423 which inserted a new Appendix FM-SE dealing with the procedural and evidential requirements and came into force on 20 July 2012. STA |
Appendix FM as updated in 2016 begins by stating (para GEN.1.1): It sets out the requirements to be met and, in considering applications under this route, it reflects how, under article 8 of the Human Rights Convention, the balance will be struck between the right to respect for private and family life and the legitima... |
It also takes into account the need to safeguard and promote the welfare of children in the UK, in line with the Secretary of States duty under section 55 of the Borders, Citizenship and Immigration Act 2009. STA |
(italicised words added by Statement of Changes in Immigration Rules (2012) (Cm 8423)) STA |
Nevertheless, the Appendix contemplates that the Rules will not cover all the situations in which a person may have a valid claim to enter or remain in the UK as a result of his or her article 8 rights. Ratio |
Paragraphs GEN.1.10 and GEN.1.11 both provide for what is to happen if an applicant does not meet the requirements of the Appendix but the decision-maker grants entry clearance or leave to enter or remain outside the rules on article 8 grounds. Ratio |
The Rules governing the pre-entry language requirement, which was the subject of this Courts decision in R (Bibi) v Secretary of State for the Home Department [2015] UKSC 68; [2015] 1 WLR 5055, grant an express exemption where there are exceptional circumstances which prevent the applicant from being able to meet the r... |
There is no equivalent exemption, or reference to exceptional circumstances, in the Rules governing the MIR at the entry clearance stage. Ratio |
Given the obligation to respect Convention rights, therefore, there can be no question of the rules relating to the MIR being a complete code. Ratio |
However, there is an exception EX.1 to the MIR and language requirements for applicants for limited or indefinite leave to remain (not leave to enter) as a partner if (a) the applicant has a genuine and subsisting parental relationship with a child under 18 in the UK who is a British citizen or has lived here continuou... |
Insurmountable obstacles is said to mean very significant difficulties faced by either which could not be overcome or would entail very serious hardship to either. Ratio |
The source of the exceptional circumstances requirement where the MIR is not met is the Immigration Directorate Instruction: Family Migration: Appendix FM Section 1.0a: Family Life (as a Partner or Parent): 5-year Routes and Appendix FM Section 1.0b: Family Life (as a Partner or Parent) 10-Year Routes. STA |
(We have been supplied with the versions published in August 2015. STA |
) Section 14 of the former requires Entry Clearance Officers, where an application does not meet the requirements in the Rules, to consider whether there may be exceptional circumstances which make refusal a breach of article 8 rights, or whether there are compelling compassionate reasons which might justify a grant of... |
However, Entry Clearance Officers are not allowed to grant entry clearance outside the Rules, so an officer who thinks that the case might meet this very high threshold must refer the case to the Referred Casework Unit (RCU) in London. STA |
The Instructions go on to state that the Rules themselves reflect the position of the Secretary of State on proportionality and reflect how the balance should be struck between individual rights and the public interest. Ratio |
Only in exceptional circumstances will a decision taken in accordance with the Rules lead to a disproportionate outcome. Ratio |
This is likely to occur only rarely. Ratio |
Section 14.1 of the 2015 Instructions gives an almost identical explanation of exceptional circumstances to that given in the December 2012 Instructions current at the time of the decision of Blake J: Exceptional does not mean unusual or unique. Ratio |
Whilst all cases are to some extent unique, those unique factors do not and generally render them exceptional. Ratio |
For example, a case is not exceptional just because the criteria set out in the Immigration Rules have been missed by a small margin. Ratio |
Instead exceptional means circumstances in which refusal would result in unjustifiably harsh consequences for the individual or their family such that refusal of the application would not be proportionate under article 8. Ratio |
The fact that refusal may, for example, result in the continued separation of family members does not of itself constitute exceptional circumstances where the family have chosen to separate themselves. Ratio |
Cases that raise exceptional circumstances to warrant a grant of entry outside the Rules are likely to be rare. Ratio |
Decision-makers are also told that the consideration of exceptional circumstances must include consideration of any factors relevant to the best interests of a child in the UK; but that requiring the Rules to be met is likely to lead to a disproportionately detrimental effect on the best interests of the child in the U... |
The key issue is whether there are any factors involving the child in the UK that can only be alleviated by the presence of the applicant in the UK. Ratio |
Consideration needs to be given to the effective and material contribution that the applicants presence in the UK would make to safeguarding and promoting the welfare of the child. Ratio |
This contribution needs to be of a significant kind, eg: Support during a major medical procedure, particularly if this is unforeseen or likely to lead to a permanent change in the childs life. Ratio |
Prevention of abandonment where there is no other family member in the UK to care for a child. Ratio |
Simply reducing the time and resource spent on a childs case by agencies such as childrens services is unlikely to be sufficient. Ratio |
The applicants presence in the UK must form part of achieving a durable solution for the child that is in his or her best interests. Ratio |
The Guidance goes on to state that: Other means of meeting the childs best interests need to have been considered and ruled out. Ratio |
The normal need for a child to be given genuine and effective care by both parents is reflected in the Immigration Rules and there must be substantive reasons why the childs best interests in this regard can only be met by granting entry clearance outside the Rules. Ratio |
So the fact that parents have chosen to travel at different times, or maintained separate life-styles in two countries, will not amount to a degree of separation that amounts to exceptional circumstances. Ratio |
On the other hand the impact of natural disaster on the overseas parents housing or employment making it impossible for the child to return to live with him or her may count. Ratio |
From 2012 to 2014, only 52 cases were referred to the RCU for consideration of leave outside the Rules, of which 26 succeeded. Ratio |
In the same period, some 30,000 applications were refused. Ratio |
The guidance quoted above applies to applications from outside the country for entry clearance. Ratio |
Instruction Appendix FM section 1.0b gives guidance on in- country applications for leave to remain outside the Rules. Ratio |
There are differences between the two, but the initial assumption that the Rules cover the ground, so that refusals will only be disproportionate in exceptional circumstances likely to be rare, and the definition of exceptional circumstances, are the same. Ratio |
The cases before the court Ratio |
The cases before us are samples of some of the situations in which the MIR may cause problems for partners who wish to live together in this country. Ratio |
In only one of them (SS) have there been findings of fact in legal proceedings. Ratio |
The others (MM, AF, AM, and SJ) have been dealt with on the basis of assumed facts. Ratio |
MM, AF, AM, SJ: the facts and decisions below FAC |
MM is a 37-year old national of Lebanon. FAC |
He entered the UK in 2001 and has been granted limited leave to remain in the UK as a refugee until June 2017. FAC |
He lives with his sister, EM, who has discretionary leave to remain (for the background see EM (Lebanon) v Secretary of State for the Home Department [2008] UKHL 64; [2009] 1 AC 1198). FAC |
She has a son, AF, who was aged 16 when these proceedings began and looks to MM as a father figure. FAC |
In 2010 MM became engaged to a Lebanese woman whom he met in Syria. FAC |
They spent five months together in Cyprus between September 2012 and January 2013. FAC |
They were married by proxy in Lebanon in 2013. FAC |
He is reading for a PhD at the University of Wolverhampton and working with three different agencies as a quality inspector. FAC |
He earns approximately 15,600 gross per annum. FAC |
His wife has a BSc in nutrition and is employed in Lebanon as a pharmacist. FAC |
She speaks fluent English and inquiries indicate that she would be likely to find skilled employment here. FAC |
MMs brother has covenanted to provide them with 80 per week for five years. FAC |
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