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It seems doubtful that even the applicant in Jeunesse itself would have satisfied such a stringent test. Ratio |
Furthermore, although section 55 is in terms directed to children in the UK, the Secretary of State has accepted that the same approach should be applied to the welfare of children elsewhere (see para 46 above). Ratio |
We have no doubt therefore that the guidance is defective in this respect and needs to be amended in line with principles stated by the Strasbourg court. Ratio |
Furthermore, the statement in GEN.1.1 that the duty has already been taken into account in the rules is wrong in law. Ratio |
Nor is the gap filled by GEN.1.10-11 which refer to the separate consideration under article 8, but not section 55. Ratio |
This is not simply a defect of form, nor a gap which can be adequately filled by the instructions. Ratio |
The duty imposed by section 55 of the 2009 Act stands on its own feet as a statutory requirement apart from the HRA or the Convention. Ratio |
It applies to the performance of any of Secretary of States functions including the making of the rules. Ratio |
While the detailed guidance may be given by instructions, it should be clear from the rules themselves that the statutory duty has been properly taken into account. Ratio |
We would grant a declaration that in this respect both the rules and the instructions are unlawful. Ratio |
(iii) Treatment of alternative sources of funding Ratio |
We have described the restrictions in the rules on taking into account prospective earnings of the foreign partner or guarantees of third party support. Ratio |
The most striking example, in the cases before us, is found in that of MM and his wife (paras 28ff above). Ratio |
On the face of it there is a strong case on the merits for admitting her consistently with the general objectives of the new rules. Ratio |
The couple have no realistic prospect of living together in any other country, and, although his earnings on their own are below the MIR, she is a pharmacist with good prospects of finding skilled employment here, and they have apparently credible promises of support from other family members. Ratio |
They are unlikely to be a burden on the state, or unable, due to lack of resources, to integrate. Ratio |
Yet the strict application of the rules will exclude them. Ratio |
As noted above (para 29) they had not applied, it seems, because they saw no point in incurring the substantial cost of an application bound to fail. Ratio |
As already noted, the Migration Advisory Committees report considered the issue of accounting for different sources of income (paras 4.15-4.19), and income of the sponsored migrant (paras 4.20-4.23). Ratio |
Under the former they observed that it might be appropriate to include in the calculation third party support received by the sponsors family, but thought that it could be difficult for UKBA to verify the extent of support and whether it would continue (para 4.18). Ratio |
They had accordingly assumed that such sources should be excluded for reasons of practicality, emphasising that this assumption was made for practical rather than economic reasons, adding: in principle a case can be made for taking other income streams into account, if an operationally feasible way of doing so can be f... |
(para 4.19) Ratio |
Similarly it saw a strong case in principle for taking account of future income of the sponsored migrant recognising that it is total household income that will determine whether the household is a burden on state, but had excluded it in recognition of the substantial risks and uncertainties attached to such calculatio... |
In his second witness statement, Mr Peckover confirms that the Secretary of State did not take up the committees offer to advise on how the threshold could be adjusted to take account of the migrant partners prospective earnings, commenting that no adjustment could remove the precariousness of such an assumption (para ... |
He also confirms that she fully explored the scope of including third party support, but decided to allow in two forms: accommodation, reflecting the need or preference to live with family or friends, and gifts of cash savings held for at least six months (para 37). Ratio |
Similar issues were discussed by this court in Mahad v Entry Clearance Officer [2009] UKSC 16; [2010] 1 WLR 48. Ratio |
There the issue was different: it turned, not on whether such sources could properly be excluded from the assessment, but whether, as a matter of construction of the pre-2012 rules (which were in different form), they had been so excluded. Ratio |
However, questions of practicality arose also in that context. Ratio |
The court rejected the argument that a narrow construction should be adopted to reflect the relative precariousness of such sources, and difficulties of verification. Ratio |
In the leading judgment, Lord Brown said: Whilst I readily acknowledge the legitimacy of each of these concerns, their strength seems to me much diminished by a number of considerations. Ratio |
First, whilst I accept that generally speaking unenforceable third party promises are likely to be more precarious and less easily verifiable than a sponsors own legal entitlements, that will not invariably be so. Ratio |
And it would surely be somewhat anomalous if ECOs could accept promises of continuing accommodation and/or employment and yet not promises of continuing payments, however regularly they can be shown to have been made in the past and however wealthy the third party can be seen to be. Ratio |
Are rich and devoted uncles (or, indeed, large supportive immigrant communities such as often assist those seeking entry) really to be ignored in this way? A second consideration, never to be lost sight of, is that it is always for the applicant to satisfy the ECO that any third party support relied upon is indeed assu... |
If he fails to do so, his application will fail. Ratio |
That this may be difficult was recognised by Collins J himself in the Arman Ali case [2009] INLR 89, 103: I do not doubt that it will be rare for applicants to be able to satisfy an entry clearance officer, the Secretary of State or an adjudicator that long-term maintenance by a third party will be provided so that the... |
But whether or not such long- term support will be provided is a question of fact to be determined on the evidence. Ratio |
Of course there may be difficulties of investigation. Ratio |
But that is already so with regard to many different sorts of application and, indeed, is likely to be so with regard to some of the kinds of third party support already conceded to be acceptable. Ratio |
(para 19) Ratio |
Lord Kerr said: The vaunted precariousness of support from a third party source is, in my opinion, no greater than that which might arise in the course of the ordinary vagaries and vicissitudes of life. Ratio |
Promised employment may not materialise or may last for only a short time. Ratio |
Dependence on benefits received by the family member who is settled in the United Kingdom may cease it is entirely conceivable that support from a number of family members and friends of the person seeking to enter will be a more dependable resource and a more effective prevention of dependence on public funds than pro... |
It is apparent from the MAC report, and the evidence of Mr Peckover, that the reasons for adopting a stricter approach in the new rules were matters of practicality rather than wider policy, reflecting what the MAC acknowledged to be the relative uncertainty and difficulty of verification of such sources. Ratio |
That did not make it unreasonable or irrational for the Secretary of State to take them into account in formulating the rules. Ratio |
The MAC recognised the strength of the case for taking account of other sources, but it did not in terms advise against the approach ultimately adopted by the Secretary of State. Ratio |
In considering the legality of that approach, for the reasons already discussed (para 59 above) it is necessary to distinguish between two aspects: first, the rationality of this aspect of the rules or instructions under common law principles, and secondly the compatibility with the HRA of similar restrictions as part ... |
As to the first, while the application of these restrictions may seem harsh and even capricious in some cases, the matter was given careful consideration by both the MAC and the Secretary of State. Ratio |
As Aikens LJ said (para 154), the decision was not taken on a whim. Ratio |
In our view, it was not irrational in the common law sense for the Secretary of State to give priority in the rules to simplicity of operation and ease of verification. Ratio |
Operation of the same restrictive approach outside the rules is a different matter, and in our view is much more difficult to justify under the HRA. Ratio |
This is not because less intrusive methods might be devised (as Blake J attempted to do: para 147), but because it is inconsistent with the character of evaluation which article 8 requires. Ratio |
As has been seen, avoiding a financial burden on the state can be relevant to the fair balance required by the article. Ratio |
But that judgment cannot properly be constrained by a rigid restriction in the rules. Ratio |
Certainly, nothing that is said in the instructions to case officers can prevent the tribunal on appeal from looking at the matter more broadly. Ratio |
These are not matters of policy on which special weight has to be accorded to the judgment of the Secretary of State. Ratio |
There is nothing to prevent the tribunal, in the context of the HRA appeal, from judging for itself the reliability of any alternative sources of finance in the light of the evidence before it. Ratio |
In doing so, it will no doubt take account of such considerations as those discussed by Lord Brown and Lord Kerr in Mahad, including the difficulties of proof highlighted in the quotation from Collins J. That being the position before the tribunal, it would make little sense for decision-makers at the earlier stages to... |
As already explained, we do not see this as an issue going to the legality of the rules as such. Ratio |
What is necessary is that the guidance to officers should make clear that, where the circumstances give rise to a positive article 8 duty in the sense explained in Jeunesse, a broader approach may be required in drawing the fair balance required by the Strasbourg court. Ratio |
They are entitled to take account of the Secretary of States policy objectives, but in judging whether they are met, they are not precluded from taking account of other reliable sources of earnings or finance. Ratio |
It is open to the Secretary of State to indicate criteria by which reliability of such sources may be judged, but not to exclude them altogether. Ratio |
We conclude therefore that, while the rules as such are not open to challenge, there are aspects of the instructions to entry clearance officers which require revision to ensure that the decisions made by them are consistent with their duties under the HRA. Ratio |
In the light of that conclusion, the Secretary of State might wish to consider whether it would be more efficient to revise the rules themselves, to indicate the circumstances in which alternative sources of funding should or might be taken into account, rather than simply to revise the guidance. Ratio |
But that would be a matter for her. Ratio |
SS (Congo) Ratio |
We turn to the only individual appeal before us, the facts of which have been set out above (para 35ff). Ratio |
The crucial finding was that there were insurmountable obstacles to the couple living together in DRC (para 61). Ratio |
Although this may seem a little surprising on the evidence as we have it, the finding was not challenged in the Upper Tribunal, and (as Miss Giovannetti realistically accepts) it cannot be challenged in this court. Ratio |
Certain aspects of the reasoning of First-tier Tribunal were flawed, as the Upper Tribunal found, but they were held not to be material. Ratio |
The Upper Tribunal concluded: Clearly, if there are insurmountable obstacles to the couple carrying on family life in the DRC it follows that there are exceptional circumstances which would mean that refusal of the application results in unjustifiably harsh consequences for the sponsor and the claimant. Ratio |
The only factor weighing against them in the stage two assessment is the claimants inability to meet the income threshold of 18,600 per annum. Ratio |
The sponsor's income was however well above ... the lower appropriate threshold of 13,400 per annum. Ratio |
This was the case at the date of the hearing and it was probably also well above this threshold at the date of decision. Ratio |
Accordingly, although there are some flaws in the judges reasoning, she reached the sustainable conclusion that the interference with family life consequential upon the refusal decision was disproportionate; and that the insistence in this particular case on the claimant meeting the minimum income threshold of 18,600 p... |
(paras 24-25) Ratio |
The only criticism which might be made of this passage is the reliance on the figure of 13,400 adopted as a guide by Blake J (see para 33 above), but not ultimately upheld by the Court of Appeal. Ratio |
The tribunals reliance on that part of Blake Js judgment was erroneous, though of course entirely proper at the time. Ratio |
However, in considering after this long delay whether the error is such as to require remission to the tribunal, fairness requires that that we should also take account of the more recent guidance of the Strasbourg court in Jeunesse. Ratio |
The issue is not whether there has been a near miss from the figure in the rules, but the weight to be given to any factors weighing against the policy reasons relied on by the Secretary of State to justify an extreme interference with family life. Ratio |
One such factor may be the extent to which the family, while not complying with the MIR, would in practice be a burden on the state. Ratio |
The other Jeunesse factors pointed strongly in favour of the applicants. Ratio |
Taking the factors listed in Jeunesse: family life would effectively be seriously ruptured, because they could spend only short periods of time together; while both spouses originated from the DRC, the sponsor has been here for many years and was naturalised as a citizen here as long ago as 2006; he also has two childr... |
The only factor pointing the other way is the fact that this is a post-flight relationship, formed when there was no guarantee that the applicant would be admitted, although it began in 2010 before the Rules were changed, and the sponsor would easily have met the old adequate maintenance test. Ratio |
The reason for including refugees and those granted humanitarian protection in the MIR on the same terms as others is that their relationships developed post- flight should not be treated more favourably than the relationships of British citizens and others settled here. Ratio |
But neither should such individuals be treated less favourably. Ratio |
If there were insurmountable obstacles to a non-refugee British citizen going to live in his partners home country, and there were nowhere else for them to go, it would be necessary to weigh the precariousness aspect against the extent to which the couple would, in fact, be able to support themselves. Ratio |
Even if the tribunals adoption of the guide figure of 13,400 was misdirected, that should not be determinative. Ratio |
In the unusual circumstances of this case, after long delay due to legal arguments which were of no direct concern to the applicants, it would be unfair to subject them to the uncertainties of a rehearing unless there were substantial grounds for thinking that a different result would be reached. Ratio |
That is far from the case. Ratio |
The considerations listed above provide ample support for the conclusion reached by the First-tier Tribunal, and for the view of the Upper Tribunal that any legal errors were not material. Ratio |
It is no doubt desirable that there should be a consistent approach to issues of this kind at tribunal level, but as we have explained there are means to achieve this within the tribunal system. Ratio |
As was said in Mukarkar v Secretary of State for the Home Department [2006] EWCA Civ 1045, para 40 (per Carnwath LJ): It is of the nature of such judgments that different tribunals, without illegality or irrationality, may reach different conclusions on the same case The mere fact that one tribunal has reached what may... |
However, on the facts of the particular case, the decision of the specialist tribunal should be respected. Ratio |
Conclusion RPC |
We would allow all the appeals to the limited extent indicated above. RPC |
In SS(Congo) this has the effect that the decision of the Upper Tribunal will be restored. RPC |
We would also declare that the rules fail unlawfully to give effect to the duty of the Secretary of State in respect of the welfare of children under section 55 of the 2009 Act. RPC |
Save to that extent we would dismiss the challenge to the validity of the rules. RPC |
So far as concerns the instructions, we have indicated those aspects which require revision. Ratio |
However, given the passage of time, including new legislation, it would be wrong for this court to attempt to indicate how those defects should now be corrected. Ratio |
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