The rule of law (part 2)

09 Sep 2014

In 2012, the Immigration Rules were amended to create a requirement that anyone sponsoring the entry to the UK of a non EEA spouse must demonstrate a minimum income of £18,600 gross per annum.  The change was, of course, driven by political considerations but it also had important economic implications.  It was estimated to produce savings of £530 million on welfare payments, £570 million on NHS expenditure and £340 million on education and other public spending over 10 years.

 The High Court found the new rule to be a disproportionate interference with the UK partner's right to private life under Article 8 of the European Convention on Human Rights in the context of his or her legal rights to live in the UK, to marry and have a family and to respect for private and family life. However, it also suggested that a lower income requirement might pass muster (see MM (Lebanon), AM (Pakistan) & SJ (Pakistan) v The SSHD).  The Court of Appeal has just reversed the High Court's decision and in doing so acknowledged the Home Office took great care in striking a difficult balance.

 The Court of Appeal accepted that the Home Office analysed the effect of the immigration of non EEA partners and dependent children on the welfare system, the level of income required to minimise dependence on the state and the notion of a link between higher income and better chances of integration.  It went on to reject the compelling justification test applied by the High Court in favour of its reverse; was the policy within a reasonable margin of executive discretion?  In a remark which will chime with employment lawyers and HR professionals, Lord Justice Aikens said:

 Individuals will have different views on what constitutes the minimum income requirements needed to accomplish the stated policy aims.  In my judgement, it is not the court's job to impose its own view unless, objectively judged, the levels chosen are to be characterised as irrational, or inherently unjust or inherently unfair.

The court acknowledged the effect of the rule is discriminatory but observed that immigration law is inherently discriminatory, the aim of the rule is legitimate and in the absence of anything wholly unreasonable, it was justified.

Our view…

This is an important decision which will lead to the refusal of approximately 4,000 visa applications which have been side-tracked pending the appeal.  Many of these are "hard" cases in which applicants may still be able to argue special circumstances.  It is also an interesting illustration of the balancing exercise required by the human rights convention and of 3 judges deciding human rights issues in favour of the government.  So Lord Chancellor, you don't need to kick your opponents' shins – just apply the law.