The prospects for a Home Office appeal against the minimum income threshold ruling

Another month brings another defeat for Home Office policy in the courts. As usual defeat is taken badly. Currently the Home Office website carries a news story informing applicants that they will appeal the defeat in MM [2013] EWHC 1900 (Admin) and that decision making is to be put on hold. Quite hilariously the news story is accompanied by a picture of a nice family reading what presumably must be Home Office website. Given the background context of keeping families apart we are not sure such a picture of family unity is entirely appropriate.

The reason for this blog post however is to address briefly the prospect of an appeal. Is a successful challenge a real possibility?

The judge in MM was Mr Justice Blake. As well as being the current President of the Immigration and Asylum Chamber of the Upper Tribunal, as a barrister and then Queen's Counsel Blake J was involved in some extremely important cases. With respect to Article 8 of the European Convention on Human Rights this includes the landmark House of Lords cases of Huang and Razgar. An expert on article 8 and UK immigration therefore.

In terms of the judgement in MM itself, Blake J undertakes an extremely careful and scholarly approach. He reviews the authorities from both a European and domestic point of view, documenting the development of article 8 jurisprudence over the years. This is not an easy decision, the reasoning is delicately structured and undertaken with great skill.

Perhaps most importantly Blake J identifies other cases which concerned rights based challenges to the Immigration Rules. These cases include the Certificate of Approval to Marry scheme which for a time required prospective spouses subject to immigration control to seek permission to be married and the imposition of a lower age limit upon spouses to prevent forced marriages.

In both of these examples, with the cases of O’Donoghue and Others v. the United Kingdom and Quila v SSHD [2011] UKSC 45 respectively, UK government policy was found to represent a disproportionate interference in core convention rights. In the first instance by the European Court of Human Rights and in the second by the UK Supreme Court.

Blake J is careful to balance examples where government policy prevailed, such as the imposition of a basic English language requirement (Chapti), however the issue is the scale of the interference and the ability of a couple or family to surmount the obstacle placed by the rule. Blake J has this to say considering the various ( and numerous) specific issues for applicants under Appendix FM:

"Taken together, I am satisfied that these measures amount to a considerably more intrusive interference than the 'colossal'[8] interference deriving from the minimum age rule in Quila or indeed the basic language test in Chapti. In Quila a couple were prevented from obtaining entry clearance until both parties were 21. It may be noted that while death and taxes are certain, so also is the prospect of getting older. A couple who would have been forced to wait until they were both 21 to apply for entry clearance, will at least have the happy assurance of knowing that that date will arrive at a maximum of three years from the 18 birthday of the younger member. By contrast the ability of a sponsor to earn £18,600 per annum gross or have accumulated £16,000 or more in savings is neither assured nor even reasonably likely at the age of 21[9]. No young person who attends university is likely to enter the job market until after that age, and many young people however energetic and well-qualified are discovering that finding paid employment of any kind or sufficiently well-paid employment for the purposes of the Immigration Rules is a real challenge.

The language requirement upheld by the majority of the Court of Appeal in Bibi, placed the initiative in the hands of the claimant who seeks to come here. Whilst the acquisition of pre-entry language skills in the ordinary case was an interference with family reunification it was not considered to be a particularly difficult or insuperable one, and does not depend on the happenstance of the state of the economy. By contrast the ability to find well paid and stable employment may well be beyond the ability of the average sponsor to influence."

It is this which may be the critical point. In Quilia the minimum age restriction was found to be a 'colossal' interference in core rights by the Supreme Court. But applicants at least had the prospect of getting older. The could meet the rules in the future. A young worker on a low wage may never have a salary increase. There may be no prospect of meeting the requirements at any point. Equally the Certificate of Approval scheme was an affront to genuine couples (and articles 8 & 12) but was at least potentially resolvable for an applicant. The basic English test (with the lowest grading required under the Common European Framework of Reference for Languages) was also something that could be met with a bit of study and some effort.

Meeting the specific income requirement or the extremely prescriptive rules, which bar third party support for example,  may never be practically possible for some people.

It is perhaps a cruel irony that the Home Office has responded to this defeat by extending that interference in family life by putting applications on hold. In addition potential applicants may be further disheartened to know that the appellate process may continue to the Supreme Court or even the European Court of Human Rights. Often it seems the government as a matter of policy, regardless of the merits of an appeal, will pursue the matter as far as possible so that they can blame liberal judges damaging their honest and fair policy objectives (and to take away from the accusation that those policies may have been badly thought-out to begin with).

So is there any cause for hope? From the jurisprudence it seems that there is. The UK government has only rarely been successful in imposing excessively restrictive blanket policies on family migration. It is of course nonsense to say that in every case family life will outweigh the needs for fair, sensible and proportionate immigration control, but the real difficulty is when there is no fairness or proportionality, with a system that admits of little exception amongst its tortuous series of inconsistent rules.

This is a highly complex area, but suffice to say challenges of this type are not new and the lessons of the past would suggest the government may have a hard time overturning this judgement.