Neutral Citation Number: [2013] EWHC 1900 (Admin) Case No: CO/7031/2012 CO8588/2012 C0/6529/2012 IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT Royal Courts of Justice Strand, London, WC2A 2LL Date: 05/07/2013 Before : THE HONOURABLE MR JUSTICE BLAKE - - - - - - - - - - - - - - - - - - - - - Between : MM (1) ABDUL MAJID (2) SHABANA JAVED (3) Claimants - and - SECRETARY OF STATE FOR THE HOME DEPARTMENT Defendant -and- EM AF Interested Parties - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Manjit Gill QC and Tony Muman and Navtej Ahluwahlia (instructed by JM Wilson) for MM Ramby De Mello and Danny Bazini (instructed by Bhatia Best Solicitors) for Majid Ramby De Mello and Aftab Rashid (instructed by Britannia Law Practice) for Javed Lisa Giovannetti QC and Neil Sheldon (instructed by Treasury Solicitors) for the Defendant Richard Drabble QC and Tony Muman (instructed by RBM Solicitors) for AF. Hearing dates: 5, 6, 7 and 8 February 2013 - - - - - - - - - - - - - - - - - - - - - Approved Judgment I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic. ............................. The Hon Mr Justice Blake CO/7031/2012 Approved Judgment CO/8588/2012 CO/6529/2012 MR JUSTICE BLAKE: Part 1: The claimants and their challenges 1. These are three applications for judicial review directed to common parts of amendments made to the Immigration Rules promoted and laid before Parliament by the defendant Secretary of State in June 2012. The relevant rules are set out in Appendix 1 to this judgment. The applications have been listed for hearing together. MM 2. MM is a 34 year old national of the Lebanon. He entered the United Kingdom in 2001. He subsequently sought refugee status and has been granted limited leave to remain in the United Kingdom as a refugee until 28 January 2014. He has two brothers with similar leave to remain. He lives with his sister EF who has discretionary leave to remain arising from the breakdown of her marriage. She has a son AF who looks to MM as a father figure. 3. MM became engaged in the summer of 2010 to a Lebanese woman. As a result of his refugee status he was unable to visit his fiancée in Lebanon but they met in Syria where they originally planned to marry in 2012. Those plans have had to change because of the deteriorating security situation in Syria. Since the issue of these proceedings, MM and his fiancée have met twice in Cyprus on visit visas, and in January 2013 married by proxy in Lebanon. 4. MM is a post-graduate student of the University of Wolverhampton presently working towards a Ph.D. He has been unable to find employment commensurate with his qualifications and at present works 37 hours per week with different employment agencies as a quality inspector on varying shift rates. He states that he earns approximately £15,600 on average per annum gross. His wife is also well qualified. She has a B.Sc in nutrition, has computing skills and is employed in Lebanon as a pharmacist. She speaks fluent English. Initial inquiries with employers in the UK indicate that she is likely to find skilled employment if she were lawfully resident here. 5. The problem for MM and his wife is that the amended Immigration Rules governing applications made from 9 July 2012 (see Part 8 rule A277) impose a mandatory financial requirement for the admission of a spouse without children to be met by the sponsor of a minimum income of £18,600 per annum gross (see Appendix FM paragraph E-ECP 3.1 to 3.2). He cannot meet that threshold. The Hon Mr Justice Blake CO/7031/2012 Approved Judgment CO/8588/2012 CO/6529/2012 6. He and his wife would be staying in the same accommodation as that presently occupied by MM and his sister and so her arrival would not occasion any additional housing costs. 7. He further complains that the Rules prevent the couple being able to rely on his wife’s earning capacity if she applies for entry clearance. It is necessary for the sponsor to show that he can support his spouse from his earnings alone and/or any savings or other source of income throughout the 30 month probationary period that applies to spouses (Appendix FM-SE at paragraph 1 (c). 8. Further the Rules prevent the couple from being able to rely on a deed of covenant made by MM’s brother to the effect that he will provide £80 per week to the couple over a five year period; neither can they rely on a promise by MM’s father to provide an equal amount in remittances from Lebanon (Appendix FM –SE at paragraph 1 (b)). 9. The combination of these measures means that MM cannot enjoy married life with his wife. He cannot live in their mutual country of nationality as he is a refugee from persecution there. She cannot meet the maintenance requirements for entry clearance to come to the United Kingdom. She has not applied for entry clearance as the requirements are mandatory and there is no discretion under the rules for the Entry Clearance Officer to waive them. She would have to pay a substantial fee (at present ₤826 for a spouse) for an application that could not succeed. There is no other country in which they have the right to reside. 10. He contends that the restrictions are an unjustified interference with his right to respect for private and family life. Until July 2012, the only material requirement of the Immigration Rules was that admission of the spouse would not lead to additional recourse to public funds and that the couple would be adequately accommodated (see rule 281 (iv) and (v)). This rule continues to apply for certain classes of admission. On the claimed facts he could meet that requirement without difficulty. 11. Whilst he acknowledges that the rules make provision for the spouses of refugees who have not yet been granted indefinite leave to remain, he contends that they do not sufficiently recognise the problems facing refugees. These problems include not merely the inability to live elsewhere, but also difficulties in finding employment and establishing themselves economically in the host society, particularly in the early years when they still have only limited leave to remain. 12. MM further contends that his problems in achieving family unity have an adverse impact on his nephew AF who benefits from the care MM provides. AF has been granted leave to join these proceedings as an interested party and contends that amongst other things, the Immigration Rules when applied to MM’s case infringe not only the Human Rights Act but the statutory duty to have regard to the welfare of the The Hon Mr Justice Blake CO/7031/2012 Approved Judgment CO/8588/2012 CO/6529/2012 child with respect to immigration decision making: see s.55 Borders Citizenship and Immigration Act 2009 (BCIA), that came into force in November 2009. Abdul Majid 13. Mr Majid is aged 55 years and is a British citizen of Pakistani origins. He has been resident in the United Kingdom since 1972. In 1991 he married a Pakistani woman who lives in Kashmir, although the marriage was not formally registered until 2006. The couple have five children, four of whom have been resident in the United Kingdom since 2001 and the youngest of whom lives with his mother. 14. Mr Majid’s wife has had problems in obtaining an entry clearance to join him in the United Kingdom. She was refused entry clearance as a spouse in 2002, 2006 and 2010 and refused admission as a visitor in 2012. These dates indicate that none of those refusals had anything to do with the new Immigration Rules in force from 9 July 2012. There have been problems about recognition of the marriage and satisfying the previous maintenance and accommodation requirements. 15. Mr Majid has been out of work since 2006 and now receives £17,361 per annum in benefits. He believes that his prospects of employment would be improved if his wife were admitted and she could look after the children. He also contends that he has relatives who are willing to provide him and his wife with financial support until they are self sufficient. 16. His essential complaint is that the provisions of Appendix FM t hat deal with the admission parents of children settled in the UK for 7 years do not apply to parents who also seeking to enter as spouses (contrast rule E-LTRPT 2.3( b)(iii) and 4.1 ). Shabana Javed 17. Ms Javed is a British citizen of Pakistani origins. She has been resident in the United Kingdom for the past 30 years. She lives in the Handsworth area of Birmingham that she describes as economically and socially deprived. She has no qualifications and her employment history is intermittent. 18. She is presently unemployed and states that she is unaware that any of her female peers when in employment have been able to earn more than £18,000. She further contends that her local job centre only offers employment vacancies at salaries that are below this rate of pay. 19. On 4 May 2012 she married a Pakistan national who lives and works in Pakistan as a civil servant. She is unable to sponsor him to come to the United Kingdom because of her lack of employment or employment prospects at the requisite salary level. She The Hon Mr Justice Blake CO/7031/2012 Approved Judgment CO/8588/2012 CO/6529/2012 states that she cannot leave Handsworth to find better paid employment because she would lose her free accommodation with her extended family. She does not consider that she has the financial resources or personal background to improve her qualifications so as to enhance her ability to find better paid employment. 20. Ms Javed complains of the same provisions of the rules as MM. In addition she states that the requirements of Appendix FM-SE and in particular rule 2 and 13, to prove the requisite income of the sponsor by six months continuous wage slips before the date of application by the same employer or twelve months with a change of employer is unnecessarily onerous and operates harshly on those with casual employment records. 21. She further submits that the whole regime of financial sponsorship introduced by Appendix FM as a whole is unjustifiably discriminatory as it impacts on women and in particular on British Asian women, because the socio-economic data demonstrates that this segment of society suffers from significantly lower rates of pay or employment than others, notably men. She particularly complains that the exclusion of her husband’s potential earnings in the UK constitutes discrimination as the statistical data considered below suggests that male migrants are able to obtain employment and support their families without difficulty. Part 2: The Legislative Provisions 22. The modern era of immigration control dates from the Immigration Act 1971 mainly in force in January 1973. Section 1 of that Act is into the following terms: ‘General principles. (1) All those who are in this Act expressed to have the right of abode in the United Kingdom shall be free to live in, and to come and go into and from, the United Kingdom without let or hindrance except such as may be required under and in accordance with this Act to enable their right to be established or as may be otherwise lawfully imposed on any person. (2) Those not having that right may live, work and settle in the United Kingdom by permission and subject to such regulation and control of their entry into, stay in and departure from the United Kingdom as is imposed by this Act; and indefinite leave to enter or remain in the United Kingdom shall, by virtue of this provision, be treated as having been given under this Act to those in the United Kingdom at its coming into force, if they are then settled there (and not exempt under this Act from the provisions relating to leave to enter or remain). (3)…… (4) The rules laid down by the Secretary of State as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons not having the right of abode shall include provision for admitting (in such cases and subject to such restrictions as may be provided by the rules, and subject or not to The Hon Mr Justice Blake CO/7031/2012 Approved Judgment CO/8588/2012 CO/6529/2012 conditions as to length of stay or otherwise) persons coming for the purpose of taking employment, or for purposes of study, or as visitors, or as dependants of persons lawfully in or entering the United Kingdom. 23. Three points are worth noting at the outset. First, British citizens like Mr Majid and Ms Javed are ‘free to live in the United Kingdom without let or hindrance’. The permitted restrictions on this right are the measures to prove that they are British citizens when entering or leaving the country or general measures such as a lawful order of a court preventing a person from travelling abroad in certain circumstances. Such measures are not in contention in these applications. Second, the rules laid down by the Secretary of State as to the practice to be followed in the administration of the Act for regulating the admission of those not having the rights of abode (essentially those who are not British citizens) shall include provisions for admitting dependants of persons lawfully in the United Kingdom. Third, the original statutory scheme included s. 2(2) of the Act that granted the right of abode to Commonwealth wives of British citizens, and reflected a historic social presumption that wives would follow husbands. This provision has long since been repealed, but its influence can be detected in previous versions of the Immigration Rules where more generous provisions were once made for the admission of wives of men settled here than the husbands of women settled here. 24. Central to the present challenge is the extent to which the statutory power of the Secretary of State to make rules of immigration practice is governed by the duty to act compatibly with the human rights of the sponsors pursuant to s.6 Human Rights Act 1998, and whether the Immigration Rules impugned in these challenges are unlawful in that they fail to comply with such a duty. It is therefore appropriate at this point in the survey of the legal context for this case to examine the European contribution to the issue. 25. Article 8 is the following terms: "1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well­ being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others." Article 14 prohibits discrimination in the application of Convention rights on ‘any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status’. The Hon Mr Justice Blake CO/7031/2012 Approved Judgment CO/8588/2012 CO/6529/2012 26. In May 1985 overt gender discrimination in the then Immigration Rules led to one of the early decisions of the European Court of Human Rights with respect to Article 8 and Article 14 of the European Convention on Human Rights. The cases of Abdulaziz, Cabales, and Balkandali v United Kingdom 7 EHRR 471 (1985) concerned women who were unable to sponsor the admission of their husbands. 27. The Court found that the Rules were a violation of Article 14 when taken together with Article 8, but not a violation of Article 8 taken alone. In a well- known passage the Court observed:- ‘67. The Court recalls that, although the essential object of Article 8 (art. 8) is to protect the individual against arbitrary interference by the public authorities, there may in addition be positive obligations inherent in an effective "respect" for family life (see the above-mentioned Marckx judgment, Series A no. 31, p. 15, para. 31). However, especially as far as those positive obligations are concerned, the notion of "respect" is not clear-cut: having regard to the diversity of the practices followed and the situations obtaining in the Contracting States, the notion's requirements will vary considerably from case to case. Accordingly, this is an area in which the Contracting Parties enjoy a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention with due regard to the needs and resources of the community and of individuals (see, amongst other authorities, mutatis mutandis, the above-mentioned "Belgian Linguistic" judgment, Series A no. 6, p. 32, para. 5; the National Union of Belgian Police judgment of 27 October 1975, Series A no. 19, p. 18, para. 39; the above-mentioned Marckx judgment, Series A no. 31, p. 15, para. 31; and the Rasmussen judgment of 28 November 1984, Series A no. 87, p. 15, para. 40). In particular, in the area now under consideration, the extent of a State's obligation to admit to its territory relatives of settled immigrants will vary according to the particular circumstances of the persons involved. Moreover, the Court cannot ignore that the present case is concerned not only with family life but also with immigration and that, as a matter of well- established international law and subject to its treaty obligations, a State has the right to control the entry of non-nationals into its territory. 68. The Court observes that the present proceedings do not relate to immigrants who already had a family which they left behind in another country until they had achieved settled status in the United Kingdom. It was only after becoming settled in the United Kingdom, as single persons, that the applicants contracted marriage (see paragraphs 39-40, 44-45 and 50-52 above). The duty imposed by Article 8 (art. 8) cannot be considered as extending to a general obligation on the part of a Contracting State to respect the choice by married couples of the country of their matrimonial residence and to accept the non-national spouses for settlement in that country. In the present case, the applicants have not shown that there were obstacles to establishing family life in their own or their husbands' home countries or that there were special reasons why that could not be expected of them. In addition, at the time of their marriage (i) Mrs. Abdulaziz knew that her husband had been admitted to the United Kingdom for a limited period as a visitor only and that it would be necessary for him to make an application to remain permanently, and she could have known, in the light of The Hon Mr Justice Blake CO/7031/2012 Approved Judgment CO/8588/2012 CO/6529/2012 draft provisions already published (see paragraph 20 above), that this would probably be refused; (ii) Mrs. Balkandali must have been aware that her husband's leave to remain temporarily as a student had already expired, that his residence in the United Kingdom was therefore unlawful and that under the 1980 Rules, which were then in force, his acceptance for settlement could not be expected. In the case of Mrs. Cabales, who had never cohabited with Mr. Cabales in the United Kingdom, she should have known that he would require leave to enter and that under the rules then in force this would be refused. 69. There was accordingly no "lack of respect" for family life and, hence, no breach of Article 8 (art. 8) taken alone.’ 28. The finding that there was no lack of respect for family life in rules that did not permit female sponsors to bring in their husbands has constituted a major restriction on the ability of claimants to rely on Article 8 in entry clearance cases. The jurisprudence of the Court has developed considerably since 1985 with respect to Article 8. In particular the distinction between the positive obligation to respect family life found in Article 8(1) and the negative obligation to refrain from unjustified interferences with it under Article 8(2) has been reduced. Although the Court in Abdulaziz characterised the three applicants as women settled in the United Kingdom, one of them was a naturalised British citizen, and the rights of the citizen to enjoy family life in his or her country of nationality has emerged as a significant theme in the intervening period in European and domestic law. 29. Most of the significant developments in the European case law with respect to the admission of family members have occurred where a parent seeks to be reunited with a child. The case law is now replete with references to the importance of the interests of children, both in cases of admission to the territory of a Contracting State, (see for example Sen v Netherlands (2001) 36 EHHR 81 and Tuquabo-Tekle v Netherlands (2006) 1 FLR 978) and restrictions upon the expulsion of those admitted as children (see Maslov v Austria (2009) INLR 47). 30. Both the Court’s decision in Maslov v Austria and that of the Supreme Court in ZH (Tanzania) v SSHD [2011] UKSC 4; [2011] 2 AC 166 emphasise the importance of the welfare of the child as a primary albeit not paramount consideration in any administrative decision making that touches upon those interests and cite Article 3 of the United Nations Convention on the Rights of the Child 1989 (UN CRC) as the international law source of that proposition1. 1 ‘In all actions concerning children, whether undertaken by public or private social welfare institutions , courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration’. The Hon Mr Justice Blake CO/7031/2012 Approved Judgment CO/8588/2012 CO/6529/2012 31. Further, when the United Kingdom withdrew its reservation relating to immigration control from its accession to the UN CRC Parliament enacted s.55 of the UK Borders Citizenship and Immigration Act 2009 in the following terms: Duty regarding the welfare of children (1) The Secretary of State must make arrangements for ensuring that— (a) the functions mentioned in subsection (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom, and (b) any services provided by another person pursuant to arrangements which are made by the Secretary of State and relate to the discharge of a function mentioned in subsection (2) are provided having regard to that need. (2) The functions referred to in subsection (1) are— (a) any function of the Secretary of State in relation to immigration, asylum or nationality; (b) any function conferred by or by virtue of the Immigration Acts on an immigration officer; (c) any general customs function of the Secretary of State; (d) any customs function conferred on a designated customs official. (3) A person exercising any of those functions must, in exercising the function, have regard to any guidance given to the person by the Secretary of State for the purpose of subsection (1).’ 32. It may be noted from the terms of s.55 (1) (a) that the statutory duty only relates to children who are in the United Kingdom. The Guidance issued by the Secretary of State invites Entry Clearance Officers to consider the spirit of the guidance when making entry clearance decisions about children abroad and the Upper Tribunal has indicated in T ( s.55 BCIA 2009- entry clearance) (Jamaica) [2011] UKUT 483; [2012] Imm AR 346 how the guidance and Article 8 may combine to require a detailed evaluation and consideration of the impact of the immigration decision of the welfare on a child. 33. Apart from cases involving children there have been many significant developments in the Article 8 case law of the Strasbourg Court. The case of Boultif v Switzerland (2001) 33 EHRR 50 was intended by the Grand Chamber to give guidance in respect of the principles to be applied where a foreign spouse faced deportation for criminal conduct. Nevertheless, none of the claimants has suggested that the Article 8 case law of the European Court, whether alone or in conjunction with Article 14, has resulted in any decision declaring disproportionate rules relating to the maintenance requirements applied by Contracting States for the admission of spouses unaccompanied by children. On the international plane this remains an area where the national authorities have a wide margin of appreciation or discretionary area of judgment because they are better placed to assess and be democratically accountable for the economic consequences of migration. There have, however, been significant developments in domestic law, to which I will turn later in this judgment.