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Alternatively his father has promised to remit an equal amount from Lebanon. FAC |
AF has been included as an interested party to MMs claim because of the adverse impact upon him of MMs difficulties in achieving family unity in this country. FAC |
This, he contends, is not only in breach of his Convention rights but also of the Secretary of States duty, in section 55 of the Borders, Citizenship and Immigration Act 2009 (the 2009 Act), to have regard to the need to safeguard and promote the welfare of children when making decisions which affect them. FAC |
AM is a British citizen of Pakistani heritage and has lived here since 1972. FAC |
In 1991 he married a Pakistani woman who lives in Kashmir although the marriage was not formally registered until 2006. FAC |
They have five children who are British citizens, four of whom have lived in this country since 2001 and the youngest of whom lives with his mother in Kashmir. FAC |
AM has been out of work since 2006 and is dependent on benefits. FAC |
His wife was refused leave to enter under the old Rules because of this. FAC |
He believes that his employment prospects would be improved if his wife were admitted and could look after the children. FAC |
He also argues that he has relatives who could support them until they become self-sufficient. FAC |
He complains about the application of the MIR to the parents of children settled here, who are seeking to enter or remain as spouses or partners. FAC |
(He also complained about the contrast between the Rules governing parents seeking to enter or remain as spouses or partners and those governing parents seeking to enter or remain as lone parents or separated parents having contact with their children, but the Court of Appeal refused him permission to appeal on this gr... |
SJ is a British citizen who was born here and is also of Pakistani heritage. FAC |
She lives with her family in Birmingham, has no qualifications and an intermittent employment history with no prospect of employment at the required level of earnings. FAC |
In 2012 she married a Pakistani man who lives and works as a civil servant in Pakistan. FAC |
In 2013 she sponsored his application to come to this country, but following the Court of Appeal decision in 2014 the application was refused on the ground that the MIR and accommodation requirement were not met and there were no exceptional circumstances leading to the grant of entry clearance outside the Rules. FAC |
She contends that the MIR is not only a violation of her Convention rights under articles 8 and 12 but also that it is indirectly discriminatory against women, and in particular British Asian women, who suffer from significantly lower rates of pay and employment than others. FAC |
Blake J declined to strike down the Rules introducing the MIR, because they were capable of leading to an article 8 compatible result. FAC |
Claims of individual violations should be examined in the context of an application where the relevant facts could be established and factors weighed (para 120). FAC |
These included the best interests of any children involved (para 119). FAC |
He also rejected the discrimination challenge on the ground that it would be impracticable and inappropriate to introduce different rules for, for example, women sponsors or sponsors living in lower paid regions (para 114). FAC |
Nevertheless he found that, when applied to the partners of British citizens or of recognised refugees, the combination of more than one of five features of the Rules was so onerous in effect as to be an unjustified and disproportionate interference with a genuine spousal relationship (para 123). FAC |
Those five features were: setting the income level at above 13,400, the lowest threshold identified by the MAC and close to the national minimum wage, then 13,600; requiring savings of 16,000 before they could be used to make up a shortfall; using a 30-month period for forward income projection as opposed to a 12-month... |
While the MIR was rationally connected to a legitimate aim, these features went further than necessary to promote it (para 144). FAC |
But he declined to seek to encapsulate the nuances of this judgment in a formal declaration (para 154). FAC |
The Court of Appeal rejected the applicants argument that the MIR was not rationally connected to its legitimate aims: it was enough that the Secretary of State had a rational belief that the policy would overall achieve the identified aim (para 142). RLC |
The Court went on to hold that, while proportionality had to be judged objectively by the Court, as held by the House of Lords in R (SB) v Governors of Denbigh High School [2006] UKHL 15; [2007] 1 AC 100, appropriate weight had to be given to the judgment of the Secretary of State, particularly where she had acted on t... |
She had shown that the interference was both the minimum necessary and struck a fair balance between the interests of the groups concerned and the community in general. RLC |
It was not the courts job to impose their own view of the minimum income required to accomplish the stated policy aim unless the level chosen was irrational or inherently unjust or inherently unfair, which it was not (para 151). RLC |
Given this conclusion, it was unnecessary to consider the exceptional circumstances provisions in the Instructions. RLC |
Both these and the duty to safeguard the welfare of children might be factors in individual cases but were not the basis for a challenge to the Rules themselves (paras 161 and 164). RLC |
SS: the facts and the decisions below FAC |
SS is a citizen of the Democratic Republic of Congo (DRC) and resident there. FAC |
She is married to NT, who is also from the DRC, but was granted refugee status here and later became a naturalised British citizen. FAC |
They met in 2010 on one of NTs visits to the DRC and married in September 2012. FAC |
In November 2012 SS applied for entry clearance under Appendix FM. FAC |
This was refused by the Entry Clearance Officer on the ground that the MIR was not met and the correct documents had not been supplied. FAC |
She appealed to the First-tier Tribunal. FAC |
The Tribunal found that the documentation showed that NTs gross annual income for the tax year 2011/2012 was 16,194. FAC |
New information showed that his earnings were roughly 17,000 per annum. FAC |
This did not meet the MIR, but the appeal was allowed on article 8 grounds. FAC |
The couple would not be able to live together in the DRC. FAC |
NT earned well above the minimum wage (amounting to 13,600 per annum). FAC |
They would be able to live on his income without placing additional strain on the public purse. FAC |
SS had suffered a miscarriage after her application had been refused which had left her traumatised and deeply distressed that NT was unable to visit her for fear of losing his employment. FAC |
She needed to be admitted to the United Kingdom so that she can take solace with her husband and begin to form family life with him here. FAC |
In reaching this conclusion the Tribunal applied the approach of Blake J in MM (Lebanon) to assessing the proportionality of the interference. FAC |
The Upper Tribunal dismissed the Entry Clearance Officers appeal. RLC |
It held that the First-tier Tribunal had been wrong to take into account events since the refusal, but that since there were insurmountable obstacles to family life continuing in the DRC on a permanent basis it followed that there were exceptional circumstances resulting in an unjustifiably harsh situation for the coup... |
The Court of Appeal allowed the Entry Clearance Officers appeal on the basis that the First- tier Tribunal had been wrong to apply the reasoning of Blake J in MM (Lebanon), had given inadequate weight to the MIR in the article 8 assessment and too much weight to the near-miss aspect, and had failed to identify valid co... |
However, the First-tier Tribunals findings of fact, including that the couple could not live together in DRC, were not challenged and the case was remitted to the Upper Tribunal. RLC |
The case law Ratio |
This Court has considered the inter-relationship between the Human Rights Act 1998 and the Immigration Rules affecting people who apply to join spouses, partners and other family members in the United Kingdom on several occasions, beginning with Huang, above, and most recently in Bibi, above, and Agyarko v Secretary of... |
The starting point is, of course, that any state has the right, in international law, to control the entry of foreigners and how long they may remain after entry. Ratio |
Nevertheless, that right has to be exercised consistently with the obligations of the European Convention on Human Rights. Ratio |
In Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471, the European Court of Human Rights held that refusing to admit the foreign spouses of British citizens or persons settled here was not a breach of the article 8 right to respect for family life; there was no general obligation to respect a married... |
However, the refusal did engage article 8 rights sufficiently to bring the case within the article 14 requirement that there be no unjustified discrimination in the enjoyment of those rights; in that case, there was unjustified discrimination on grounds of sex. PRE |
The majority in that case went so far as to say that there was no lack of respect for the couples family life. PRE |
Since then, however, the Strasbourg case law has moved on, and recognised that such refusals do amount to a lack of respect, as this Court held in R (Aguilar Quila) v Secretary of State for the Home Department (AIRE Centre intervening) [2011] UKSC 45; [2012] 1 AC 621. PRE |
The Home Secretary clearly accepts this, as she acknowledged in Appendix FM itself that article 8 required a fair balance to be struck between individual rights and the public interest. PRE |
Nevertheless, the Strasbourg case law has long drawn a distinction between the expulsion of settled migrants with rights of residence in the host country and the refusal to admit, or the removal of, migrants with no such rights. PRE |
The former involves an interference with the right to respect for family or private life which has therefore to be justified under article 8(2), as being necessary in a democratic society in pursuance of a legitimate aim. PRE |
The context has typically been the commission of criminal offences by a migrant who has been living lawfully in the host country for a long time, sometimes since birth or early childhood. PRE |
The Strasbourg case law is discussed in the recent decision of this Court in Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60; [2016] 1 WLR 4799. PRE |
In summary, the factors to be taken into account were explained in Boultif v Switzerland (2001) 33 EHRR 1179: the nature and seriousness of the offence; the length of the applicants stay in the host country; the time elapsed since the offence and his conduct in the meantime; the nationalities of the people concerned; t... |
These were approved and expanded by the Grand Chamber in ner v The Netherlands (2007) 45 EHRR 421, which emphasised the best interests and well-being of the children, in particular the seriousness of the difficulties which any children of the applicant are likely to encounter in the country to which the applicant is to... |
Refusing to admit, or removing, migrants with no settled rights of residence involves the potential breach of a positive obligation to afford respect to private or family life by allowing a person to enter or remain in the host country. PRE |
Technically, therefore, the question is whether the host country has such an obligation rather than whether it can justify interference. PRE |
Hence, as the Grand Chamber said in the recent case of Jeunesse v The Netherlands (2015) 60 EHRR 789, the criteria developed in the courts case law for assessing whether a withdrawal of a residence permit of a settled migrant is compatible with article 8 cannot be transposed automatically to the situation of an alien s... |
Nevertheless, the court went on to repeat, as had been said in many previous cases dating back at least as far as Gul v Switzerland (1996) 22 EHRR 93, that the principles applicable to the states negative and positive obligations under article 8 were similar: In both contexts regard must be had to the fair balance that... |
There is no general obligation to respect a married couples choice of country in which to reside or to authorise family reunification. PRE |
It will depend upon the particular circumstances of the persons concerned and the general interest. PRE |
Factors to be taken into account are the extent to which family life would effectively be ruptured; the extent of the ties in the host country; whether there are insurmountable obstacles (or, as it has sometimes been put in other cases, major impediments: see, for example, Tuquabo-Tekle v The Netherlands [2006] 1 FLR 7... |
If family life was created at a time when the people involved knew that the immigration status of one of them was such that persistence of family life in the host state would from the outset be precarious, it is likely only to be in exceptional circumstances that the removal of the non-national family member will const... |
All of this had already been said in the similar family reunification case of Rodrigues da Silva v The Netherlands (2007) 44 EHRR 729. PRE |
However, since then, the Grand Chamber had decided, in Neulinger v Switzerland (2012) 54 EHRR 1087, that the best interests of any child whose family life was involved had to be taken into account in article 8 cases, and in Nunez v Norway (2014) 58 EHRR 511, this had tipped the balance in an immigration case. PRE |
In Jeunesse, therefore, the Grand Chamber went on to say: Where children are involved, their best interests must be taken into account. PRE |
On this particular point, the Court reiterates that there is a broad consensus, including in international law, in support of the idea that in all decisions concerning children, their best interests are of paramount importance. PRE |
Whilst alone they cannot be decisive, such interests certainly must be afforded significant weight. PRE |
Accordingly, national decision- making bodies should, in principle, advert to and assess evidence in respect of the practicality, feasibility and proportionality of any removal of a non-national parent in order to give effective protection and sufficient weight to the best interests of the children directly affected by... |
(para 109) PRE |
In Jeunesse, the Court found that the circumstances were exceptional and a fair balance had not been struck (para 122). PRE |
The applicants spouse and children were all Netherlands nationals with the right to enjoy family life together in the Netherlands (para 115). PRE |
The applicant had been living in the Netherlands for 16 years and had no criminal record. PRE |
Her presence had been tolerated by the Netherlands authorities (para 116). PRE |
There were no insurmountable obstacles to the family relocating to her home country, but the family would experience a degree of hardship if forced to do so (para 117). PRE |
The authorities had not given sufficient weight to the interests of the children; the applicant was their mother and primary carer while the father worked full time to support the family and they were deeply rooted in the Netherlands (paras 118-120). PRE |
The central issue, according to the Court, was whether a fair balance had been struck between the personal interests of all members of the family in maintaining their family life in the Netherlands and the public interest in controlling immigration (para 121). PRE |
This was nothing new: the Court has referred to striking a fair balance between those interests in numerous family reunion cases, with varying results depending on the individual circumstances: Gul v Switzerland, above, para 38; Ahmut v The Netherlands (1997) 24 EHRR 62, paras 63, 73; Sen v The Netherlands (2003) 36 EH... |
However, while the Strasbourg court has not found it necessary to carry out the article 8(2) proportionality analysis in family reunification cases, this Court has adopted that approach in Huang, above, EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41; [2009] AC 1159, Quila, above, Zoumbas v Secr... |
As this Court has also held in Hesham Ali v Secretary of State for the Home Department, above, para 49, there is no objection to our employing this useful analytic tool. PRE |
The issue is always whether the authorities have struck a fair balance between the individual and public interests and the factors identified by the Strasbourg court have to be taken into account, among them the significant weight which has to be given to the interests of children. PRE |
Best interests of children Ratio |
There is a further reason in this country for giving significant weight to the interests of children. Ratio |
This country is party to the United Nations Convention on the Rights of the Child. Ratio |
As is well known, article 3(1) provides that: In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. STA |
Originally, the United Kingdom had entered a reservation in respect of immigration matters, but this was lifted in 2008 and section 55(1) and (2) of the 2009 Act requires the Secretary of State to make arrangements for ensuring that her own functions in relation to immigration, asylum and nationality, and those conferr... |
It is common ground that this duty applies, not only to the making of decisions in individual cases, but also to the function of making the Immigration Rules and giving guidance to officials. STA |
Section 55(3) requires persons exercising those functions to have regard to any guidance given by the Secretary of State in relation to this duty. STA |
Statutory guidance has been given in Every Child Matters: Change for Children (2009). STA |
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