text stringlengths 5 5.67k |
|---|
The role of the tribunals Ratio |
It is perhaps understandable that, while recognising the general objective of fairness and consistency, the House in Huang did not in terms address the mechanisms by which it was to be achieved within the appellate system. Ratio |
The immigration appeal system was then in a process of transition. Ratio |
At the time of the relevant appeals the system had provided for an initial appeal to immigration adjudicators, with an onward appeal on points of law to the Immigration Appeal Tribunal. Ratio |
By the time of the House of Lords hearing this arrangement had been supplanted by an appeal to a single-tier Asylum and Immigration Tribunal. Ratio |
Since then there has been more radical change to the tribunal system under the Tribunals Courts and Enforcement Act 2007. Ratio |
In 2010 immigration appeals were brought within the new two-tier system created by the Act, with a specialist Immigration and Asylum chamber at each level. Ratio |
Part of the function envisaged for the Upper Tribunal within that system is the giving of guidance to the First-tier Tribunal on issues of principle (see Jones v First-tier Tribunal [2013] UKSC 19; [2013] 2 AC 48). Ratio |
The Immigration and Asylum Chamber of the Upper Tribunal has well-established practices for selecting test cases to give authoritative guidance on particular issues. Ratio |
We have not heard detailed submissions on this aspect, and it is in any event a matter of practice for the Presidents of the relevant Chambers of the First-tier and Upper Tribunals, rather than this court, as to what if any guidance should be given to tribunal judges. Ratio |
However, the system so described does point the way to a means of promoting consistency in the approach to questions arising under article 8, at both levels of decision-making. Ratio |
The experience built up by tribunals in dealing with individual cases can provide a basis on which the Upper Tribunal may develop a consistent approach to the handling of cases at the first tier. Ratio |
Their guidance in turn should help to inform the evolution of departmental policy. Ratio |
The result is not a confrontation between the executive and the courts or tribunals, but rather a partnership between two agencies each charged by the legislature with a specific role in administering a system which is to be fair both to the public and to individual applicants. Ratio |
Policy and expertise Ratio |
As Lord Reed has shown (Hesham Ali, paras 46f), although the tribunal must make its own judgment, it should attach considerable weight to judgments made by the Secretary of State in the exercise of her constitutional responsibility for immigration policy. Ratio |
He cites Lord Binghams reference in Huang to the need to accord appropriate weight to the judgment of a person with responsibility for a given subject matter and access to special sources of knowledge and advice. Ratio |
As that passage indicates, there are two aspects, logically distinct: first, the constitutional responsibility of the Secretary of State for setting national policy in this area; and secondly the expertise available to her and her department in setting and implementing that policy. Ratio |
Both are relevant in the present case, but the degree of respect which should be accorded to them may be different. Ratio |
The weight to be given to the rules or Departmental guidance will depend on the extent to which matters of policy or implementation have been informed by the special expertise available to the Department. Ratio |
A good illustration in a different factual context is to be found in the Denbigh High School case, above, on which Lord Wilson in Quila (para 46ff) placed particular reliance as explaining the nature of the courts inquiry under the fair balance part of the four-stage test. Ratio |
Lord Bingham (para 30) referred to the value judgment required, in which proportionality was to be judged objectively, by the court It is notable however that the objective inquiry actually undertaken by Lord Bingham in that case (concerning school uniform policy as applied to Muslim girls) involved giving substantial ... |
The power of decision has been given to them for the compelling reason that they are best placed to exercise it, and I see no reason to disturb their decision. Ratio |
(para 34) By contrast in Quila itself, as Lord Wilson held (para 58), the Secretary of State had failed to show any adequate evidentiary support for the policy choices reflected in the rules under challenge. Ratio |
As Lord Reed explains (Agyarko, para 47), this approach is consistent with the margin of appreciation permitted by the Strasbourg court on an intensely political issue, such as immigration control. Ratio |
However, this important principle should not be taken too far. Ratio |
Not everything in the rules need be treated as high policy or peculiarly within the province of the Secretary of State, nor as necessarily entitled to the same weight. Ratio |
The tribunal is entitled to see a difference in principle between the underlying public interest considerations, as set by the Secretary of State with the approval of Parliament, and the working out of that policy through the detailed machinery of the rules and its application to individual cases. Ratio |
The former naturally include issues such as the seriousness of levels of offending sufficient to require deportation in the public interest (Hesham Ali, para 46). Ratio |
Similar considerations would apply to rules reflecting the Secretary of States assessment of levels of income required to avoid a burden on public resources, informed as it is by the specialist expertise of the Migration Advisory Committee. Ratio |
By contrast rules as to the quality of evidence necessary to satisfy that test in a particular case are, as the committee acknowledged, matters of practicality rather than principle; and as such matters on which the tribunal may more readily draw on its own experience and expertise. Ratio |
Analysis Ratio |
The initial challenges brought by MM, AF, AM and SJ were to the Rules introducing the MIR. Ratio |
Orders were sought quashing the Rules, declaring them incompatible with the Convention rights, and unreasonable and ultra vires at common law. Ratio |
At that stage there were no Instructions giving guidance on how the new Rules were to be applied by entry clearance officers and in-country decision- makers. Ratio |
Instructions were, however, issued in December 2012 and have to be taken into account as part of the overall scheme: on the one hand, they might so mitigate the effects of the Rules as to make them compatible with the Convention rights when they would not otherwise have been so; on the other hand, they might, taken in ... |
Against that background we make no apology for not attempting to cover all the points made in the copious submissions on both sides. Ratio |
In this case, more than many, there is a serious danger of missing the wood among the trees. Ratio |
We have already indicated why the central challenge - to the validity of the rules as such under the HRA - must fail. Ratio |
We also agree with Aikens LJ in the Court of Appeal, for reasons also articulated by Blake J (paras 112-130), that no separate issue arises in respect of discrimination under article 14. Ratio |
For completeness we mention here the cross-appeal of Mr Majid. Ratio |
The Court of Appeal refused permission to appeal (for the reasons given at paras 165-172). Ratio |
Although Mr de Mello attempted to persuade us otherwise, that is determinative in this court also. Ratio |
The remaining issues can be considered under three heads: i) The principle of a minimum income requirement; ii) The treatment in the rules and instructions of children; iii) The treatment in the rules and the instructions of alternative sources of funding. Ratio |
(i) Acceptability in principle of the MIR Ratio |
There can be no doubt that the 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. Ratio |
There are several types of family, not illustrated in the cases before us, upon whom the MIR will have a particularly harsh effect. Ratio |
These include British citizens who have been living and working abroad, have married or formed stable relationships there, and now wish to return to their home country. Ratio |
Many of these relationships will have been formed before the new Rules were introduced or even publicly proposed. Ratio |
They also include couples who formed their relationships before the changes in the Rules were introduced and who had every expectation that the foreign partner would be allowed to come here. Ratio |
Of particular concern is the impact upon the children of these couples, many or even most of whom will be British citizens themselves. Ratio |
These are illustrated in a Report commissioned by the Office of the Childrens Commissioner for England, Family Friendly: The Impact on Children of the Family Migration Rules: A Review of the Financial Requirements (2015, Middlesex University and the Joint Council for the Welfare of Immigrants). Ratio |
But the fact that a rule causes hardship to many, including some who are in no way to blame for the situation in which they now find themselves, does not mean that it is incompatible with the Convention rights or otherwise unlawful at common law. Ratio |
As far as the Convention rights are concerned, the arguments have concentrated on article 8, the right to respect for private and family life, either alone or in conjunction with article 14, the right to enjoy the Convention rights without discrimination, rather than on article 12, the right to marry and found a family... |
The MIR does not, as such, prevent a couple marrying. Ratio |
It does, however, present a serious obstacle to their enjoying family life together. Ratio |
Further, unlike the temporary impediment held to be unlawful in Quila, the MIR may constitute a permanent impediment to many couples, because the sponsor will never be able to earn above the threshold and the couple will not be able to amass sufficient savings to make good the shortfall. Ratio |
Female sponsors, who have constituted as many as a third of the total, are disproportionately affected, because of the persisting gender pay gap, as are sponsors from certain ethnic groups whose earnings tend to be lower, and those from parts of the country where wages are depressed. Ratio |
In Quila, however, there was no immigration dimension: although the measure in question was contained in the Immigration Rules, its purpose was not to control immigration, but to deter or prevent forced marriages. Ratio |
In this case, there undoubtedly is an immigration dimension. Ratio |
The MIR is part of an overall strategy aimed at reducing net migration. Ratio |
Its particular aims are no doubt entirely legitimate: to ensure, so far as practicable, that the couple do not have recourse to welfare benefits and have sufficient resources to be able to play a full part in British life. Ratio |
As accepted by the courts below, those aims are sufficient to justify the interference with, or lack of respect for, the article 8 right. Ratio |
In agreement with both Blake J and the Court of Appeal, we would also reject the suggestion that there is no rational connection between those legitimate aims and the particular income threshold chosen. Ratio |
The work of the Migration Advisory Committee is a model of economic rationality. Ratio |
Even though it had to make certain assumptions, it was careful to identify and rationalise these. Ratio |
Making those assumptions, it arrived at an income figure above which the couple would not have any recourse to welfare benefits, including tax credits and housing benefits. Ratio |
That being a legitimate aim, it is also not possible to say that a lesser threshold, and thus a less intrusive measure, should have been adopted. Ratio |
It may, of course, have a disproportionate effect in the particular circumstances of an individual case, but that is not the claim currently before us (save in relation to SS, discussed below). Ratio |
That view of the acceptability in principle of the MIR is reinforced by the treatment of a similar issue by the Strasbourg court in Konstatinov v Netherlands [2007] 2 FCR 194, which also concerned minimum income requirements. Ratio |
The applicant was of Roma origin with a rather mixed background, including several aliases, an expulsion from the Netherlands in 1987 for unspecified reasons, and a string of convictions for robbery and theft in the 1990s. Ratio |
The immediate issue for the court concerned the ministers refusal in November 1998 of her request for a residence permit to enable her to live with her husband (entitled to permanent residence since 1988) and their son (born in 1989). Ratio |
The grounds of refusal, unsurprisingly, included public order grounds, but also her husbands failure to satisfy the minimum income requirements under the rules (para 15). Ratio |
The refusal was upheld by the domestic courts on both grounds (para 21), and by Strasbourg. Ratio |
In its decision given in April 2007, the court noted that the relationship had been developed at a time when her status was precarious (para 49). Ratio |
It also accepted the principle of a minimum income requirement: In principle, the Court does not consider unreasonable a requirement that an alien having achieved a settled status in a Contracting State and who seeks family reunion there must demonstrate that he/she has sufficient independent and lasting income, not be... |
(para 50) Having regard to her criminal record, the fact that her son would come of age in April 2007, and the lack of any insurmountable obstacles to her own return to Serbia where she had lived until the age of seven (paras 51-52), it could not be said that the Netherlands authorities had failed to strike a fair bala... |
Miss Giovannetti is entitled to rely on para 50 as confirming that a minimum income requirement, such as in the present case, is in principle acceptable, and a matter properly taken into account in the balancing process. Ratio |
The case is also significant as showing how national policy choices may inform the courts consideration of the case under article 8. Ratio |
Mr Drabble QC for SS (case para 149ff) relies on the case as showing that precariousness was a variable rather than binary consideration, a matter to be taken into account rather than one leading automatically to a requirement of exceptionality. Ratio |
However, that was before Jeunesse brought a greater measure of clarity to that issue. Ratio |
We conclude that the challenge to the acceptability in principle of the MIR must fail. RPC |
(ii) Treatment of children Ratio |
The only case before us directly concerning a child is that of AF. Ratio |
Blake J was clearly unimpressed by that case on its facts, saying: the proposition that denial of admission of MMs wife interferes unduly with AFs best interests because it leads MM to spend time in Cyprus away from his nephew and de facto child, is a challenging one to substantiate. Ratio |
It is not possible to do so in the context of a generic challenge to legality of the rules as such. Ratio |
(para 115) On the material before us, we would find it difficult to disagree with that assessment of the particular case. Ratio |
It does however provide the opportunity for us to deal with the position of children under the rules as a matter of general principle. Ratio |
We have already explained how the internationally accepted principle requiring primary attention to be given to the best interests of affected children is given clear effect in domestic law and policy. Ratio |
The same principle is restated as part of the considerations relevant to the article 8 assessment in Jeunesse (see para 40 above), requiring national decision-makers to: advert to and assess evidence in respect of the practicality, feasibility and proportionality [of any such removal of a non- national parent] in order... |
(para 119) In Jeunesse itself the determining factor for the court seems to have been the authoritys failure to give adequate weight to the impact on the children of the removal of their mother, who was the homemaker and primary carer of the children who are deeply rooted in the Netherlands (para 41 above). Ratio |
In the new Appendix FM to the rules, paragraph GEN.1.1 asserts that it takes into account the Secretary of States duties in respect of children. Ratio |
Miss Giovannetti (case para 233) relies on that statement. Ratio |
Apart from some references to specific categories, she prays in aid the proposition that it will be for the entry clearance officer to ensure that appropriate consideration is given to the interests of any relevant children, it being axiomatic that this can only be decided on the facts of a particular case. Ratio |
That is clearly correct. Ratio |
As Blake J said: alongside the rules there are also legal duties towards children, that can be applied on a case-by-case basis when the relevant facts are established. Ratio |
There is a statutory duty on the entry clearance officer to have regard to the best interests and welfare of a child in the UK when considering the admission of someone whose presence or absence impacts on the child. Ratio |
(paras 113-114) However, her reliance on that principle does nothing to support the assertion in GEN.1.1 that those aspects are sufficiently taken into account in the appendix itself. Ratio |
In our view the instructions in their present form (quoted at para 24 above) do not adequately fill the gap left by the rules. Ratio |
Rather than treating the best interests of children as a primary consideration, taking account of the factors summarised in Jeunesse, they lay down a highly prescriptive criterion requiring factors that can only be alleviated by the presence of the applicant in the UK, such as support during a major medical procedure, ... |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.