In July 2014, the campaign against the family immigration rules established in July 2012 encountered a disappointing setback. The Court of Appeal ruled in favour of the Home Office’s appeal [The Queen on the application of (1) MM (Lebanon), (2) AM (Pakistan) & (3) SJ (Pakistan), Respondents v The Secretary of State for the Home Department, Appellant] against a previous ruling that questioned the lawfulness of the £18,600 minimum income requirement to sponsor a non-EEA partner or spouse. In 2013, Blake J in the High Court declared that the new immigration rules, introducing the new minimum income requirement of £18,600 (with additional sums for each child) were unlawful on the grounds of human rights. The Secretary of State appealed this verdict; the Court of Appeal granted the appeal. This outcome, which was led by Lord Justice Aikens, is disheartening.
Lord Justice Aikens emphasised his awareness of “the evidence submitted by the claimants to demonstrate how the new minimum income requirements will have an impact on particular groups” and, particularly, “the evidence that only 301 occupations out of 422 listed in the 2011 UK Earnings data had average annual earnings of over £18,600.” The judge further declared that the Secretary of State had, after much research, provided “a rational conclusion on the link between better income and greater chances of integration.” Aikens’ final conclusion was that “the Secretary of State’s judgment cannot be impugned.”
Aikens further added that the Secretary of State “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.” Despite noting the figures of occupations that cannot meet the income requirement, Aikens stressed the fact that the Secretary of State researched independently in deciding the figures, concluding: “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 my view they cannot be.”
The Secretary of State has been enthusiastically attempting to regulate the way judges interpret Article 8 – the right to private and family life – of the European Court of Human Rights (ECHR): the Home Secretary has assimilated Article 8 into the Immigration Rules, which apparently comply. However, Lord Justice Aikens held that where Immigration Rules deliver a “‘complete code’” for a person’s Article 8 rights, the context must be fully taken into account. In the case of an immigrant felon, for example, the code must be balanced by the circumstances. Yet if the relevant regulation is not a ‘complete code’ – as in migrant family cases – courts should pay closer attention to the proportionality of the interference of family life, alongside the court’s jurisprudence and the jurisprudence of the ECHR.
Despite this concern, however, when considering whether the stated policy objectives behind these rules had been met (significant for any Article 8 assessment) Lord Justice Aikens stated: “I cannot accept these arguments in principle. 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 seeming lack of scrutiny or evidence required for the making of laws by today’s government raises some pertinent questions. In what way is it lawful for the Secretary of State’s “belief” to be adequate enough justification for keeping thousands of families, including babies and children, separated? This ruling ultimately allows the perpetual setback of wealth to govern whether a British citizen has the right to fall in love with a foreigner and be permitted to raise a family in the UK. This ruling is surely flawed.
The Home Office will now, in light of this ruling, have to decide upon the 4000 cases that were put on hold pending the final decision. Cases that only marginally failed to reach the income requirement of £18,600 were not downright refused in light of last year’s High Court judgment. However, they were not approved either: countless couples are still in limbo, waiting on the Home Office’s response. Despite this final verdict now being appealed by families to the Supreme Court, the Home Office began making their decisions on 28th July 2014: decisions that will, undoubtedly, result in refusals.