Posted on July 17th 2014
The campaign against the family immigration rules of July 2012 suffered a setback last week. The Court of Appeal ruled in favour of the Home Office’s appeal against a previous ruling which cast a shadow of doubt on the legality of the £18,600 minimum income requirement.
Blake J in the High Court in 2013 held that the new immigration rules introducing the new minimum income requirement for sponsoring a non-EEA partner/ spouse to live in the UK, of £18,600 (with additional sums for each child) was unlawful on human rights grounds. The Secretary of State appealed this decision, the Court of Appeal has allowed her appeal.
The decision led by Lord Justice Aikens is extremely disappointing. JCWI are gravely concerned at the conclusions drawn.
The judge says he is “very conscious of the evidence submitted by the claimants to demonstrate how the new minimum income requirements will have an impact on particular groups and in particular the evidence that only 301 occupations out of 422 listed in the 2011 UK Earnings data had average annual earnings of over £18,600…..”
He further states the “Secretary of State has done work to analyse the effect of the immigration on non-EEA partners and dependent children on the benefits system, the level of income needed to minimise dependence on the state for families where non-EEA partners enter the UK and what I regard as rational conclusion on the link between better income and greater chances of integration, my conclusion is that the Secretary of State’s judgment cannot be impugned.’
He goes on to add, “She has discharged the burden of demonstrating that the interference was both the minimum necessary and strikes a fair balance between the interests of the groups concerned and the community in general.”
Having noted the number of occupations that cannot meet the income threshold, he places great weight on the fact that the Secretary of State has conducted independent research in deciding the figure and concludes, “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.” In Lord Justice Aiken’s view and with agreement from the other two judges in the Court of Appeal, he concludes, “in my view they cannot be.”
There is some hope on the interpretation of Article 8 of the ECHR, the right to private and family life. The Secretary of State has bene keen to limit how judges interpret Article 8 as she has incorporated it into the Immigration Rules deeming that they are Article 8 compliant. However, in this case, Lord Justice Aikens held that where the Immigration Rules provide a ‘complete code’ for dealing with a person’s Article 8 rights, such as in the case of foreign criminal, then the balancing exercise must be done in accordance with the code. But if the relevant rule is not a ‘complete code’ as in the case of the family migration rules, then courts should consider the proportionality of the interference with family life in greater detail in line with the court’s jurisprudence and the jurisprudence of the European Court of Human Rights.
However, despite this concession, when assessing whether the stated policy aims behind these rules were met, which is relevant to any Article 8 assessment, Lord Justice Aikens stated, ‘the Secretary of State does not have to have “irrefutable empirical evidence” that the individual features of the policy proposed will achieve the social aim intended’. It is enough that she should have a rational belief that the policy will, overall achieve the identified aim’
This allows the Government of the day to make any laws without scrutiny or evidence. JCWI submits, that if evidence shows discrimination against lower income earners, if there is no evidence that poorer people will not integrate better, then how can it be right that the Secretary of state’s ‘belief’ is sufficient justification for keeping thousands of families, including children apart.
This judgment continues to allow wealth to dictate whether a British citizen has the right to fall in love with a foreigner and be entitled to family life in the UK. This cannot be right.
In light of this judgment the 4000 cases that were put on hold by the Home Office pending this decision will now be decided. Those who fell slightly short of the income threshold of £18,600 were not refused in light of the High Court judgment last year, unfortunately, though they were not allowed either and couples were in limbo waiting. Now, although this judgment will be appealed by the families to the Supreme Court, the Home Office will commence decision making on 28th July 2014 – this will result in refusals.
This judgement will be appealed to the Supreme Court and JCWI will be intervening in the name of justice and fairness for all citizens, rich or poor.
The full judgment is below for you to download.