The Supreme Court has recently delivered judgment in three important Article 8 immigration appeals. Neil Sheldon acted for the Home Office in each case, instructed by the Government Legal Department.
- Hesham Ali (Iraq) v Secretary of State for the Home Department, with Lisa Giovannetti QC of 39 Essex Chambers.
- R (Agyarko) and another v Secretary of State for the Home Department, with Lisa Giovannetti QC
- MM (Lebanon) and others v Secretary of State for the Home Department with Lisa Giovannetti QC and Alan Payne of 5 Essex Court.
This appeal concerned the balancing exercise to be undertaken between the public interest in the deportation of foreign criminals, and those criminals’ rights under article 8 of the Convention. The Supreme Court dismissed Mr Ali’s appeal by a majority of 6 to 1.
The Court held that the Immigration Rules did not alone govern appellate decision-making as to the balance to be struck. It remained for the tribunals to judge whether the factors weighing against the public interest led to the conclusion that deportation would be a disproportionate interference with the appellant’s right to a family life in each case.
However, the Rules were a relevant consideration which the Upper Tribunal had wrongly failed to take into account. It is within a state’s margin of appreciation to adopt rules reflecting the assessment of the public interest in the deportation of foreign criminals. Where the Secretary of State has adopted a policy in relation to the assessment of proportionality, set out in the Rules and endorsed by Parliament, the Upper Tribunal should give considerable weight to it.
The two appellants had each entered the UK as visitors and remained after their leave had expired, forming relationships with British partners. They appealed against refusal of leave to remain.
The Secretary of State had determined that both appellants had failed to satisfy the requirement in the Immigration Rules that there be ‘insurmountable obstacles’ preventing them from continuing their relationships outside the UK, and there were no exceptional circumstances justifying a grant of leave under art. 8. The Supreme Court unanimously dismissed the appeals against that decision.
The ultimate question for the decision-maker in art. 8 cases is whether a fair balance has been struck between the competing public and individual interests involved, applying a proportionality test. The Immigration Rules and Instructions were consistent with that exercise.
The stringent test imposed by the insurmountable obstacles requirement was compatible with art. 8, and it was legitimate for the state to ask whether exceptional circumstances otherwise justified the grant of leave outside of the Rules in where relationships were formed in ‘precarious’ situations.
The appellants challenged the ‘Minimum Income Requirement’ (MIR) which amends the financial requirements applicable to non-EEA individuals seeking entry clearance or leave to remain as the foreign partner of a British citizen or resident.
The Rules require that the British spouse has a gross annual income of at least ｣18,600. The appellants variously argued that the MIR was unlawfully discriminatory, incompatible with their Convention rights to marry and to a family and private life, and that it was irrational and a rule which the Secretary of State did not have the power to make.
The Court refused the primary challenge to the lawfulness of the MIR under the Human Rights Act 1998. An income threshold pursued a legitimate aim, and as the European Court of Human Rights had confirmed, was acceptable in principle.
A Home Office spokesman said: “The court has endorsed our approach in setting an income threshold for family migration that prevents burdens on the taxpayer and ensures migrant families can integrate… This is central to building an immigration system that works in the national interest.”
The Rules remain in force, and the Home Office is “carefully considering what the court has said in relation to exceptional cases where the income threshold has not been met, particularly where the case involves a child.”
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