This morning Mr Justice Blake will hand down the High Court’s lengthy judgment in the long awaited judicial review challenge to the Secretary of State’s Minimum Income Requirement (MIR) under the Immigration Rules.
A detailed post will follow but analysing the MIR specifically in the context of British citizens and Refugees, the Court held that the minimum income provisions were a disproportionate interference with the right to respect for family life guaranteed by Article 8 ECHR.
The Court noted that it was a fundamental domestic law right for a British sponsor to reside in the United Kingdom without let or hindrance and that it is unreasonable to expect him/her to have to leave the United Kingdom solely in order to live with their spouse or family (even where such a move is perfectly possible). To expect a British citizen to relocate amounts to a serious interference with the right of residence which the judge described as “considerably more intrusive interference” than ‘colossal’. A Refugee, by virtue of the very status, does not have the ability to relocate to their home country or a third state in order to live with their spouse or family.
Further, the Judge noted that to set the figure significantly higher than even the £13,400 gross annual wage at minimum wage levels effectively denied young people and many thousands of low-wage earners in full time employment the ability to be joined by their non-EEA spouses from abroad unless they happen to have wealthy relatives or to have won the lottery. This frustrates the right of British citizens and Refugees to live with their chosen partner and found a family unless such modest earnings could be supplemented by any reasonably substantial savings, third party support of the future earnings of the spouse seeking admission.
The Judge further criticised the minimum income provisions for excluding in its calculation verifiable third party support, future earnings of the incoming spouse and any savings below £16,000.
The decision is a huge national and international public importance and will affect and impact lives of many British Citizens who have been affected by the rule changes.
The judge has ruled that the best interests of the children should be taken into consideration in every application regardless of whether the best interests are mentioned in the rule .
The claimants welcome the Judge’s recommendations which are fair .The Judge concluded that this measure is disproportionate when applied to British citizens and recognised refugees. In particular, it is more intrusive in its restrictions on family life to ensure that couples are self sufficient at the time of the spouse’s first admission, and are above the level of recourse to public funds at the end of the five year period when the spouse’s application for settlement is being considered.
The Judge suggested that there are a variety of less intrusive responses available. They include:
i. Reducing the minimum income required of the sponsor alone to £13,500 or thereabouts;
ii. Permitting any savings over the £1,000 that may be spent on processing the application itself to be used to supplement the income figure
iii. Permitting account to be taken of the earning capacity of the spouse after entry or the satisfactorily supported maintenance undertakings of third parties.
iv. Reducing to twelve months the period for which the pre estimate of financial viability is assessed.
It will be for the Secretary of State if she sees fit to make such adjustments to the rules as will meet the observations in the judgment.
If the secretary of state is not minded to amend the rules then this judgement stand in the place of the rules .This case will stand as guidance for all first tier tribunal judges in making decisions on entry clearance appeals and in country spouse applications .
This judgement is a clear victory and will assist many couples who have been affected by the rule changes.
The £18,600 requirement has caused endless misery to genuine couples who are being forced apart from one another simply because they cannot afford ‘the price of love’. UK immigration control has now become only for those who can afford it and if you do not then please do not make the mistake of falling in love with a non-EEA national. Since the new rules have come into play many spouses have been separated and cannot be reunited. Families have been split apart and children separated from their parents due to these changes.
The effect of the judgement is wide reaching and welcome news for those tireless campaigners (including certain tenacious Members of Parliament) who have fought long and hard to overturn the obvious injustice that has been caused by the introduction of the absurd MIR. Couples and families affected will now wait to see what changes (if any) follow but in the meantime those who wish to make applications which do not meet the MIR should not be perturbed from doing so. Indeed, the judgment is a positive one and encourages those who wish to argue before decision makers or the Tribunal that notwithstanding their inability to meet the MIR their individual Article 8 rights, as well as those of their family members, demand entry clearance or leave to remain outside of the rules irrespective.
The Government may well have needed a timely reminder of the unimpeachable right of a British citizen to live within the sovereignty of the United Kingdom. This judgment emphatically provides it.
Once published, a link to the judgment will be published on Chambers’ website.
To discuss this case or any other judicial review matter, or to instruct Mr Muman, please contact the clerks.