The Rule of Law (The Sequel)

28 Jul 2014

I can't remember when the Home Secretary last went to court and came out smelling of roses but it's just happened and should be acknowledged.

In 2012 the Immigration Rules were amended to require that sponsors of non EEA spouses have a minimum income of £18,600. The change was driven by political considerations but was also estimated to deliver 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 guaranteed by Article 8 of the European Convention on Human Rights. The Court of Appeal has just reversed that decision.

The Court of Appeal accepted the Home Office analysed the effect of the immigration of non EEA partners and dependents on the welfare system, the income required to minimise dependence on the state and the link between income and integration. It rejected the compelling justification test applied by the High Court in favour of its reverse; was the policy within a reasonable margin of executive discretion? Lord Justice Aikens put it like this:

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.

I could argue that hitching an income requirement to a fundamental human right is inherently unjust but a key feature of UK human rights law is balance. The court acknowledged the rule is discriminatory but observed that immigration law itself is discriminatory, the aim of the rule is legitimate and in the absence of anything wholly unreasonable it is justified.

This will lead to the refusal of approximately 4,000 visa applications which have been side-tracked pending the appeal. It's also an illustration of the difficult balancing exercise required by the human rights convention and of judges deciding a human rights case in the government's favour notwithstanding the harsh consequences for many.